Barber v. Town of New Scotland — 64 A.D. 229

Majority

p. 229

Morgan F. Barber and Others, Respondents, v. The Town of New Scotland, Appellant.

Headnote

Res acljudicata — a decision of the Appellate Division confirming, on a review by certiorari, an audit of a town board — it bars an action against the town.

Where a town board audits and allows, at a reduced amount, a claim presented by the town assessors, for moneys expended for the services of an attorney employed by them to defend a certiorari proceeding instituted to review an assessment, and the assessors, by a writ of certiorari, bring the matter before the Appellate Division which confirms the action of the town board, they cannot thereafter, disregarding the action of the town board and of the Appellate Division, bring an action against the town in the Supreme Court upon the same claim.

Appeal by the defendant, The Town of New Scotland, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Albany on the 26tli day of April, 1900, upon the report of a referee.

The action was brought to recover $768.22, being the amount expended by plaintiffs for services of an attorney employed by them in the defense of a certiorari proceeding instituted by the Delaware and Hudson Canal Company to review an assessment made by plaintiffs as assessors of the town of New Scotland in 1893. This claim

p. 230

Was in 1897 presented by these plaintiffs to the town board of New Scotland and. by such board audited and allowed at the sum of $200. The plaintiffs, feeling aggrieved, procured a writ of certiorari to this Appellate Division to review the action of the town board, and the Appellate Division confirmed such action and judgment of the board of audit. The plaintiffs thereafter brought this action in the Supreme Court to recover the same claim passed upon by the board . of audit, whose judgment respecting the same had been confirmed by the Appellate Division, and the referee directed judgment for the full amount.

S. J. Daring and J. Newton Fiero for the appellant.

Smith O'Brien, for the respondents.

The referee finds as a fact, and upon sufficient proof, that these plaintiffs presented this identical claim to the board of audit of the town of New Scotland, to be audited against said town, and that it was audited and allowed at $200; and, on certiorari sued out by plaintiffs, the Appelate Division confirmed the judgment of the town board. (People ex rel. McMillen v. Vanderpoel, 35 App. Div. 73 .) It appears that plaintiffs thereafter brought this action^ ignoring the judgment of the board of audit and the confirmation thereof by the Appellate Division.

That the town board had jurisdiction tó pass upon the claim after plaintiffs had presented it for their judgment cannot be doubted. The recognition of this authority in the town board of audit, by suing out a writ of certiorari bringing the whole matter into this Appellate Division for review, is also a recognition of the judicial function of the town board of .audit in passing upon the claim upon its merits.

' It so appears, without contention, that plaintiffs have had their day in court, that this matter has once been determined by a competent tribunal, and is res adjtodioata. That this action cannot be maintained is evident from the findings of the referee. It is unnecessary to pass upon the other questions which relate to the power of the assessors of a town to employ counsel to defend their .action as assessors without the authorization of the town board in

p. 231

■case proceedings by certiorari are brought charging an erroneous assessment. The fact that one judgment has been rendered on the merits of this matter, and that judgment still obtains, necessitates the reversal of the judgment appealed from.

All concurred ; Smith, J., in result.

Judgment reversed, with costs, and complaint dismissed, with costs.