Majority
Headnote
1. Municipal Corporations—Claims—Certiorari.1. We think that section 2125 of the Code, which provides that “a writ of certiorari must be granted and served within four calendar months after the determination to be reviewed becomes final,” is not solely a statute of limitations, but that by implication it grants the relator four months in which to procure the writ, in cases like this, in which, although the determining body has finally adjourned after disposition made of the matter, it or its successor, upon its next authorized meeting, can obey the order made by the court.
2. We do not think that the disallowance of the relator’s bill by the board of town auditors, in 1895, was a final adjudication thereof upon the merits, for the reason that, in the manner and form in which it was presented, the merits thereof were not properly presented to the board, and therefore not determined. Osterhoudt v. Rigney, 98 N. Y. 222 , 234..
4. Clearly, the relator had the right to one presentation of his bill to the board upon its merits, and if his first presentation of it was, through his inadvertence, so informal or defective as to justify its dis-allowance, he could obtain relief neither by certiorari nor by mandamus, and therefore should be permitted to re-present his bill, in such form as to obtain its adjudication upon its merits.
5. Undoubtedly, it was incumbent 'upon the relator, in order to collect his fees, to show that he was deputy sheriff de jure. This he did by his affidavit of the fact, fortified by his commission of appointment from the sheriff, and by proof that he duly took and filed the oath of' office. We need not here hold that the relator’s title to the office is not voidable in the case óf a direct attack in a proper action, [f such an action should be brought by the attorney general, it would be “triable of course and of right by a jury.” Code Civ. Proc. § 1950. The alleged defect in the relator’s title is founded upon the fact of his nonresidence in the county of Clinton. The sheriff “may appoint such and so many deputies as he may deem proper, not exceeding one for every 3,000 inhabitants of his county.” County Law, § 182. Other statutes seem to imply that he is a local officer. The deputy, in civil matters, is the servant of the sheriff. Pond v. Leman, 45 Barb. 152 ; Whitman v. Haines (Sup.) 4 N. Y. Supp. 48 ; Colvin v. Holbrook, 2 N. Y. 126 . The relator was appointed deputy sheriff of the county of Clinton mainly in order to qualify him to act as peace officer upon the line of the Delaware & Hudson Company’s railroad. No action has been brought to oust him; no one claims his place. The services for which he claims his fees were meritorious, and in the line of official duty. The case is not free from difficulty. The majority of the court think that the board of town auditors were not authorized to go behind the prima facie case made by the relator of his de jure title, and thus, in a summary manner, in effect oust him from his office. See In re Foley (Sup.) 28 N. Y. Supp. 611 ; In re Grady, 15 App. Div. 504 , 44 N. Y. Supp. 578 .
6. We think the expense of conveying juvenile delinquents to the house of refuge, upon the conviction and sentence by a justice of the peace of an offender for an offense committed within his town, is a charge upon that town (Town Law [Laws 1890, c. 569] § 165), at the rates fixed by the statute, or, if the board of supervisors have fixed different rates, then at such rates (Laws 1859, c. 254; Laws 1874, c. 446, art. 2, § 29).
The determination of the board of town auditors should be reversed, with $50 costs and disbursements. All concur, except HERRICK, J., dissenting.
HERRICK, J. (dissenting). I cannot concur in the opinion of Justice LANDON. The application for the writ of certiorari was made too late. The board had terminated its labors, and had lost jurisdic
The writ of certiorari should be quashed, with $50 costs and disbursements.
Cases cited
- Osterhoudt v. Rigney 98 N. Y. 222 at 234 p. 740, p. 742
- Pond v. Leman 45 Barb. 152 p. 741
- Colvin v. Holbrook 2 N. Y. 126 p. 741
- People ex rel. Grady v. Palmer 15 App. Div. 504 p. 741
- People ex rel. Weekes v. Board of Supervisors 82 N. Y. 275 p. 742