Western New York Institution for Deaf Mutes v. Broome County

[1] The repealing section of the Education Law of 1909 (2000), which is reproduced almost without change by section 1190 of the Laws of 1910, contains a schedule of all the acts which are intended by the Legislature to be thereby repealed, and chapter 331 of the Eaws of 1876 (plaintiff’s charter) is not therein included. This omission evidences the legislative intention to leave that charter undisturbed and, unless it be utterly inconsistent with the general scheme for education erected by the consolidation, must be so construed.

[2] Section 95 of the General Construction Law (Consol. Laws 1909, c. 22) provides that:

“The provisions of a law repealing a prior law, which are substantially reenactments of provisions of the prior laws, shall be construed as a continuation of such provisions of such prior law, * " * modified or amended according to the language employed, and not as new enactments.”

The effect of this is that the Education Law as it now stands is simply a continuation of the law as it existed prior to the act of 1909. No inconsistencies between these statutes was thought to exist formerly, and the recent endeavor of the Legislature to> collate and consolidate our statutory law has in no wise operated to change their status.. Plaintiff’s rights and powers have not been disturbed thereby, and the certificate now provided for by subdivision 6 of section 978 of the Education Law is not a prerequisite to the authority of public officers to place deaf and dumb children in its keeping. A more serious question is presented by the argument that plaintiff’s remedy is either by mandamus or certiorari, as the case may be, and that an action at law will not lie against defendant.

[3] The complaint sets forth that the claim was presented to the board of supervisors of the defendant county, “but that said board of supervisors refused and still refuses to audit the said bills or any part thereof,” and further alleges that the claim properly authenticated by the principal of plaintiff “has been duly presented to the county treasurer of Broome county, blit that said county treasurer has refused and still refuses to pay the same or any part thereof.” Defendant seems to assume that by the allegation that the supervisors refused to audit is intended to be stated that the claim was examined and passed upon as incorrect or illegal. That it was “audited at nothing.”

[4] It is the well-understood rule that a demurrer admits the truth of the statement in the pleading attacked, and that words, in the ab

[5] Prior to the passage of the County Law of 1892, it was uniformly held that the only remedy for the refusal of the board of supervisors to audit a claim against its county was by mandamus, and the only method in which its audit of such a claim could be reviewed was by certiorari, and that an action therefor could not be maintained. This is still the rule in the case of unliquidated claims. Foy v. County of Westchester, 168 N. Y. 180 , 61 N. E. 172 .

In Kennedy v. County of Queens, 47 App. Div. 250 , 62 N. Y. Supp. 276 , however, the court in a careful opinion, written by Mr. Justice Goodrich, held that, where the claim was liquidated by the existence of a county obligation for a specific sum, the plaintiff has his dual remedy, either by mandamus or by certiorari, according to circumstances, or by action directly against the county. The court adopted as the true construction of the various statutes, as they stood after 1892, the suggestion of Mr. Justice Cullen in Albrecht v. County of Queens, 84 Hun, 399 , 32 N. Y. Supp. 473 , that such a case constituted an exception to the general rule as to actions against a county. This exception seems to have been the theory of counsel in Freel v. County of Queens, 9 App. Div. 186 , 41 N. Y. Supp. 68 , affirmed 154 N. Y. 661 , 49 N. E. 124 , where an action was maintained against the county upon a liquidated contract, and the same is true in Western N. Y. v. Yates County, 94 App. Div. 1 , 87 N. Y. Supp. 534 . In neither of these cases, however, was the point brought to the notice of the court, and no attempt was made to pass upon the question. Counsel for defendant calls my attention to the fact that the Kennedy Case has never been elsewhere followed, and cites a number of decisions to sustain his assertion that its doctrine has on the contrary been steadily repudiated. It seems never specifically to have been overruled, and that it stands alone as a precedent seems to be true, for no other case involving the precise question is, so far as I can ascertain, reported. It has, however, been frequently cited both in briefs of counsel and opinions of the court, but none of the cases can be said to constitute a reversal or repudiation of its doctrine.

Foy v. County of Westchester, supra, involved an unliquidated claim and held that such cases must be presented to the board of supervisors for audit, and that their action thereon was only reviewable by certiorari.

In People v. Westchester County, 57 App. Div. 135 , 67 N. Y. Supp. 981 , the claim in controversy had been presented to the supervisors and audited for an amount less than claimed, and it was held that certiorari would lie to review the audit. In the opinion written by Mr. Justice Jenlcs, however, the dual remedy is clearly recognized, and the expression, “the two provisions can stand together as furnish

In People v. Coler, 48 App. Div. 492 , 62 N. Y. Supp. 964 , a mandamus requiring the defendant to audit relator’s unliquidated claim was sought and granted. Here the Kennedy Case was considered and distinguished with the intimation that, if the claim had been rejected and repudiated, an action at law for its recovery could be maintained. This was explicitly explained in People v. Westchester County, 53 App. Div. 339 , 343, 65 N. Y. Supp. 707 , 709, by the statement that the Coler Case held that, “where the relator’s claim had never been rejected by the board of supervisors, the Kennedy Case was not an authority” for an action at law. This seems to limit that court’s previous decision to cases where audit has been refused, but otherwise the case has no bearing here.

Bank of Staten Island v. City of N. Y. 68 App. Div. 231 , 74 N. Y. Supp. 284 , involved only the question whether the audit of a board of supervisors could be attacked collaterally.

Without attempting to review in detail the many other cases submitted to me as controlling, it is sufficient to say that the force of the Kennedy Case as an authority for the proposition that an action at law can be maintained to recover a liquidated claim against a county which has been repudiated and audit refused by the supervisors seems nowhere to have been disturbed, and I am persuaded that such is the law.

[6] The question is therefore presented as to whether the claim in suit is liquidated “by the existence of a county obligation for a speciñe sum.” There is no allegation in the complaint that the amount charged for the maintenance and education of the Lytle child was fixed by agreement with the defendant or its board of supervisors, nor that same were furnished pursuant to any such agreement. In this respect the situation differs from that presented in the Kennedy Case, where the contract had been expressly entered into and afterwards entirely repudiated by the board. Plaintiff’s charter (sections 1 and 2) authorized the sending to and reception, by it of “deaf and dumb pefsons between the ages of 6 and 12 years in the same manner and upon the same conditions as such persons may be sent to the New York Institution for the Instruction of the Deaf and Dumb, under provisions of chapter 325 of the Laws of 1863.” That chapter, as amended in 1875 (Laws 1875, c. 213), provided (section 4) that:

The “expenses for the hoard, tuition, and clothes for such deaf mute children * * not exceeding the amount of $300 per year * * * shall be raised and collected as are other expenses of the county from which such children shall be received; and the bills therefor, properly authenticated by the principal or one of the officers of the institution, shall be paid to said institution by the said county, and its county treasurer or chamberlain, as the

case may be, is hereby directed to pay same on presentation, so that the amount thereof may be borne by the proper county.”

This general statute as to compensation is unquestionably applicable for the benefit of plaintiff under its special charter and directs the payment to it of its bills upon demand by the fiscal officer of the county in such amount as its principal shall certify, not exceeding $300 per year. This plan of payment contemplates neither presentation to nor an auditing by the board of supervisors of such bills. The amount which the county is to pay, within the statutory limitation, is fixed by the principal of the institution. The contract in its entirety is ■created by the statute which empowers an overseer of the poor or supervisor to send a child of the designated class to this institution at the county’s expense; the cost to the county to be determined, not at the discretion of the board of supervisors, but, within limitations, by the plaintiff. That a claim under such a statute is so "liquidated” needs no argument. This act was evidently framed by the Legislature in consideration of our public policy toward defectives and with deliberate intent to deprive local boards of supervisors of the power to arbitrarily or otherwise reduce claims for compensation for services of great importance to the state; services highly technical in their nature and the true value of which such a board could ordinarily have no good means of determining. A similar statute relating to the care of the insane (chapter 446 of the Laws of 1874, tit. 1, art. 1, § 16) was under consideration by the court of appeals in Thomas v. Supervisors Westchester County, 115 N. Y. 47 , 55, 21 N. E. 674 , 676 ( 4 L. R. A. 477 ), where the court approves and states the object of the legislation that “it was clearly not intended to leave it (Willard Asylum) without remedy until the meeting of the supervisors and subject it (its bills) to their audit.”

Judgment overruling the demurrer, with costs, with the usual leave to answer within 20 days, is directed. Findings and proposed judgment may be submitted for signature.