People ex rel. O'Mara v. Board of Supervisors — 43 N.Y. St. Rep. 77

Majority

p. 77

The People ex rel. Dennis O’Mara, App’lt, v. The Board of Supervisors of Cayuga County, Resp’t.^[1]

(Supreme Court, General Term, Fifth Department,

Filed January 22, 1892.)

Headnote

Supervisors—Audit op accounts—Estoppel.

Where an account is audited by the supervisors at a less sum than that claimed, and the amount so allowéd is accepted by the claimant, he is precluded by such acceptance from making any further claim against the board for the same materials or services based upon the ground that the board did not pa-s on the several items, but only on the account as a whole.

Appeal bv the relator from an Order of the special term made July 27, 1891, in Monroe county, and entered in Cayuga county, August 12, 1891, denying the relator’s motion for a‘ peremptory writ of mandamus, made upon the relator’s petition for

p. 78

the payment for services rendered and materials furnished by him to the county of Cayuga.

J. Bosecrans, for app’lt; G. M. TU lliott, for resp’t.

In the year 1889 the relator rendered services and materials in painting county buildings and fences in Cayuga county under employment, as it was claimed, by the proper committee. For such services and materials he presented a bill to the board of supervisors for $646.05. The "board, however, rejected the claim as presented, but allowed to the relator the sum of $412. This amount was, in regular routine, drawn from the funds of the county and paid over to and accepted by the relator. Subsequently the relator again presented the same claim, less the sum of $412 paid to him, to the board of supervisors, and payment of the same was refused.

We know of no reason why the rule touching the acceptance of payment in case of disputed claims, though not of the whole of the-account rendered, should not apply to the relator in this instance as in other cases. Having accepted the payment of the $412, it. was not competent for him afterwards to make any claim against the board for the same materials and services. The acceptance-of this sum under the circumstances precluded the relator from further prosecuting a claim for the residue of his bill. Such was-the decision in the case of the People ex rel. McDonough v. Supervisors, 33 Hun, 305 ..

The proposition is now made by the learned'counsel for the plaintiff that, inasmuch as the board of supervisors did not pass upon the several items of the account rendered by him, but only upon the account as a whole, the case of his client is taken out of the ordinary and well-established rule. The force of this contention, however, is not apparent. If, before accepting the sum of $412, the relator had ascertained that the board of supervisors had not passed upon the several items, he could undoubtedly, by refusing to accept the money thus offered, require that there should be an examination of, and a passing upon, the several items of his account. Not having done so, however, he is now, as it seems tons, precluded from making any claim upon such contention.

It follows, therefore, that the- order should be affirmed.

Order appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.