People ex rel. Andrews v. Fitch — 9 A.D. 439

Majority

p. 439

The People of the State of New York ex rel. Avery D. Andrews, Treasurer of the Board of Police Commissioners, Respondent, v. Ashbel P. Fitch, as Comptroller of the City of New York, Appellant.

Headnote

Pew York city — a majority of the boa/rd of estimate and apportionment may transfer a fund created in 1892 to a purpose of the police department in 1895 — duty of the comptroller.

Under the provisions of the Consolidation Act (Chap. 410 of 1882) a majority of the board of estimate and apportionment of the city of Hew York may direct the comptroller to transfer a fund appropriated to a specific purpose in'the year 1892 to a purpose of the police department in the year 1895.

Section 207 of the Consolidation Act was not affected, so far as the police department was concerned, by chapter 186 of the Laws of 1898.

p. 440

The comptroller of the city of New York cannot refuse to honor the requisition of the police department for the amount of an appropriation made to it, because he fears that the moneys will he misapplied. "

Appeal by the defendant, Ashbel P. Fitch, as comptroller of -the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of June, 1896, granting the relator’s motion for.a peremptory writ of mandamus directed to the defendant commanding him to draw his warrant upon the chamberlain of the city of New York in favor of the relator for the sum of $9,416.50.

Jrnies A. Deering, for the appellant.

Francis M. Scott and David J. Dean, for the respondent.

. By resolution the board of. police commissioners requested the board of estimate and apportionment to transfer a certain sum from ' the appropriation made to the police department for the year 1892, entitled “ Construction of Station House, etc., for the ninth precinct,” to the appropriation made to the same department for the-year 1895, entitled “Contingent Expenses of the Central Department.”

The resolution recited that the money was required to enable the treasurer of the board of police commissioners to pay "bills presented for payment of expenses incurred by officers in obtaining evidence, 'and other expenses properly chargeable-to the Contingent fund.The board, of estimate and apportionment, by a vote of four in the affirmative against one in the negative, directed the transfer requested. Thereupon, the board of police commissioners made a requisition upon the appellant, the comptroller, requiring him to pay over the said sum to the relator as treasurer of the police commissioners.. '

The comptroller refused to pay the same .for the reasons that the resolution of the board of estimate and apportionment did not reeeivfe'the affirmative vote of all its members; that the Consolidation Act (Laws of 1882, chap. 410) does not empower the board of estimate and apportionment to transfer a fund, appropriated' for. a

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specific purpose in the year 1892 to another purpose in the year 1895; and that, the hoard of police commissioners intend to use the money in paying expenses which are not lawful charges against the city.

By section 189 of the Consolidation Act, creating the board of estimate and apportionment, special provision is made in respect to adopting the estimate of municipal expenses, and the affirmative vote of all the members is required, and also that the final estimate shall be sanctioned by the signature of all the members.

■ . By section 204 the board is authorized to do certain things by the affirmative vote of three members, and, without"any specification as to the vote, to do certain other things. In the same section said board is authorized to make transfers, and it is urged that as no provision is made for less than a unanimous vote, such a vote is required for such a transfer.

In the absence of any statute, it might well- be argued that this ' power, being conferred in a section where the Legislature were treating of what might be done by three affirmative votes, it was the manifest intention to permit such transfers to be made by such a vote, especially as in the instance, where it was the intention to exact unanimous action, it is expressly provided for. But this right does not depend upon any statutory construction, as in the Revised Statutes (Yol. 2, p. 555, § 27) it is expressly provided that whenever any power, authority or duty is confided by law to three or more persons, such power, authority or duty may be exercised and performed by a majority of such persons, upon a meeting of all the persons so intrusted or empowered, unless special provision is otherwise made:

By section 207 of the Consolidation Act, as originally enacted, the board of estimate and apportionment had the power at any time to transfer an excess of appropriation for one purpose in any year to other purposes and objects for which the appropriations were insufficient.

By chapter 186, Laws of 1893, such transfers were forbidden, except in the year the appropriation was made, but it was expressly provided that the act should not apply to the police department or the department of public works. This, we think, left section 207, as originally enacted, in force in this respect as to the police depart

p. 442

rnent and the department of public works, and we cannot eliminate section 207 wholly from consideration as suggested by the appellant’s counsel, but .must be governed by its provisions.

By section 262 of the Consolidation Act, it is the duty of the Comptroller to pay over to the treasurer of the police board the amount appropriated to it; it does not seem that he has any.fight .to object to honor the requisition of the board of police for money which it is entitled to receive, upon'the ground that he fears that the money will be misappropriated. He inay require vouchers for expenditures made by the treasurer of the police department to be filed with him ; and "if any moneys have been misappropriated, he may cause the bonds of the treasurer of the board of police to be prosecuted for the indemnification of the city. But by the law, the treasurer of the board of police is entitled to receive the appropriation and answer afterwards for its expenditure. This seems to be the theory of the Legislature upon the subject, and whatever we may think of the question as to the projniety of some of the proposed expenditures, we have nothing to do with this question at this stage of the: proceeding.

The office of comptroller is undoubtedly one of the most responsible in the city government. It is his. duty to scrutinize the legality of expenditures of the various departments. But where an appropriation has been made, and a department is entitled to its appropriations so as to make its expenditures itself, we do not see but that •the comptroller is bound to deliver the appropriation into the appropriate hands, holding the recipient to the accountability which the law imposes.

The order appealed from should be affirmed, with costs. .

Barrett, Rumsey, Williams and Patterson, TJ., concurred.

Order affirmed, with costs.