Majority
p. 287(70 Hun, 468.) WOOD v. MUNSON. (Supreme Court, General Term, Third Department. July 8, 1893.)
Headnote
1. Claim for Services—Evidence.' Defendant vas a physician and the health officer of the town in which the parties resided. He attended plaintiff's family through an epidemic, and, in a verified bill presented by him to the town, he included an item of $80 for this attendance. Part cf his bill was allowed and paid by the town, including $25 for such attendance, and defendant accepted the sum so allowed. Held sufficient to justify a finding that defendant’s bill was a charge against the town, and could not be interposed as a counterclaim in an action by plaintiff.
2. Same—Party as Witness—Credibility. '
In view of the action of the town board in allowing defendant’s claim in part, and his affidavit to the contrary, attached to his bill, the trial justice had a right to refuse credence to defendant’s testimony that he was not authorized by the town to attend plaintiff’s family.
p. 288Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
8. Joint Debtors—Payment by One—Effect as to Other.
Defendant’s presentation of his claim to the town, and acceptance of the amount allowed thereon, extinguished any possible liability on the part of plaintiff.
Appeal from Sullivan county court.
Action by Joseph Wood against John A. Munson. From a judgment of the county court reversing a judgment for plaintiff, rendered in a justice’s court, he appeals.
Reversed.
George H. Decker, for appellant.
George H. Smith, for respondent.
This action was brought in justice’s court to recover the sum of $20, a balance due plaintiff for services performed for defendant. The latter is a physician and the health officer of the town of Fallsburgh, where the parties reside, and had attended the family of plaintiff through an epidemic of typhoid fever, making 40 visits, of the value of $80. He was paid $25, as below mentioned, on account of said services, and the balance—$55—he set up before the justice as a counterclaim. It was shown upon the trial that defendant, after the attendance upon the family of plaintiff as aforesaid, presented a verified bill to the town for said attendance and for other services, of which the following is a copy, to wit:
•‘Town of Fallsburgh, To Dr. J. A. Munson, Dr., as health officer of said town:
1888.
July (ith. To distributing notice through town...................$ 2 00
“ 10th. “ “ “ “ “ ................... 2 00
Aug. 17th. To investigating nuisance upon premises of Ed. Vielee.. 2 00 To attending the family of Joseph H. Wood through an epidemic of typhoid fever from October 16, ’88, to Dec. 26, ’88, (inclusive,)
40 visits, at $2.00............................................ 80 00
Dec. 18th. To meeting with board............................. 2 00
To reporting 19 births, at 25 cts............................... 4 75
To reporting 14 deaths, at 25 cts................................ 3 50
Total .................................................... $96 25
“State of New York, Sullivan county—ss.: Dr. J. A. Mims on, being duly •sworn, says the items mentioned and set forth in the annexed account have been in fact performed or rendered, and are correct; that the whole amount thereof is justly due; and that no part thereof has been paid or satisfied.
“Dr. J. A. Munson.
“Sworn to before me, this 6th day of November, 1889.
“Benjamin Vemooy, Notary Public.”
The bill was presented to the board of town auditors of said town, who allowed thereon the sum of $41.25, $25 of which was so allowed on. the claim for attendance upon the plaintiff’s family. The justice gave judgment for the plaintiff for the full amount of his claim, disallowing the counterclaim of defendant.
We think he reached a conclusion warranted by the evidence. The defendant was a health officer, and attended the family of plaintiff, who were ill with a contagious disease. He afterwards made
p. 289
out a bill charging the town for said attendance, and for other services, and verified it. The town officers acted on the bill, and allowed it at $41.25, which sum defendant accepted and received. The verified bill of defendant so presented to the auditors was evidence, as against him, that he was employed by the town to attend the family of defendant. In fact, in the affidavit attached to the bill, he swears he was so employed. The fact that the auditors allowed a portion of defendant’s charge for attendance on the family of plaintiff is also evidence tending to show such employment. The town auditors had no right to make the defendant a present of $25, or to make any allowance on account of the services' in question, unless a legal charge against the town. The justice therefore had sufficient evidence before him to justify a finding that defendant’s bill for attendance on plaintiff’s family, sought to be interposed as a counterclaim, was a charge against the town. He had before him the claim of defendant to that effect, sworn to, and the action of the town authorities allowing a portion of the bill. It is true, defendant testifies that he was not authorized by the board of health or the overseer of the poor to attend plaintiff’s family; but it was a question for the justice what force, if any, he would give to the testimony of a party to the action, contradicted, as he was, by his own affidavit and the action of the town board of auditors. The justice was not compelled to believe what the defendant testified to. Hodge v. City of Buffalo, 1 Abb. N. C. 356 . He could properly determine on the evidence before him that defendant’s said services were performed on the credit of the town, and on the employment of the town officers. It follows, therefore, that, on the evidence presented to him, the justice was authorized to find that defendant’s bill, interposed as a counterclaim, was for services performed for the town of Fallsburgh, and for which that town was liable. The defendant presented his bill against the town therefor, which was acted upon by the town auditors, and allowed at $25, which sum defendant voluntarily accepted and received. The presentation, audit, and acceptance, we think, extinguish defendant’s alleged counterclaim. He voluntarily presented it as a claim against the town, and the audit of the town board of auditors was a legal adjudication of the amount due thereon. People v. Barnes, 114 N. Y. 317 , 20 N. E. Rep. 609 , and 21 N. E. Rep. 739 . The sum audited he accepted, and the effect of said transaction was necessarily to extinguish the claim as against the town. If there was any liability on the part of the plaintiff, as well as the town, for the defendant’s attendance on his family which defendant might have properly claimed, his presentation of the bill to the town, and acceptance of the amount at which it was audited, we think, must have the effect of also extinguishing the claim as against the plaintiff. As said by Landon, J., in Coonley v. Wood, 36 Hun, 559 -561, a case where one of two joint and several debtors had obtained a satisfaction of a judgment as against himself: “But, if the debt be satisfied by either, nothing remains for either to pay. If the judgment was satisfied, the debt was
p. 290
satisfied, and to allow the plaintiff to recover again would be to allow him to receive satisfaction twice upon one debt.” So, in this case, defendant presented his claim to the town auditors as against the town, and accepted the sum that they allowed thereon in payment. We think the transaction extinguished his claim against the plaintiff, if any such claim ever existed. The judgment of the county court should be reversed, and that of the justice affirmed, with costs to appellant in this court and in the county court. All concur.
Cases cited
- People ex rel. Myers v. Barnes 114 N. Y. 317 p. 289