People ex rel. Toohey v. Webb — 50 N.Y. St. Rep. 46

Majority

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The People ex rel. William A. Toohey et al., App’lts, v. Stephen I. Webb et al., Resp'ts.

(Supreme Court, General Term, Second Department,

Filed December 12, 1892.)

Headnote

1. Certiorari—Supervisors—Return.

A return by a board of supervisors to a certiorari which is authorized by a majority of the board and signed by the chairman and clerk is sufficient although not signed by a majority of the board.

2. Same—Immaterial matter.

If the return contain some matters not material it is not essential that it be sent back for correction, but such matters may be treated as surplusage.

3. Supervisors—Audit oe accounts.

Where no compensation for the services is fixed by law, and the account

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does not state the number of days service or that the same was necessarily rendered, the board may either reject the bill altogether or allow what they consider a fair compensation. If dissatisfied, the claimant should apply for a rehearing,

Appeal from order of special term, denying motion for an order directing defendants as a board of supervisors to make a further or proper return to a writ of certiorari, on the grounds: (1) That said return is not made by a majority of the board of supervisors of the county of Orange, to whom said writ was directed; (2) that said return contained matters wholly irrelevant to the requirements of the said writ; (3) that affidavits and other pipers, not a part of the proceedings of the said board of supervisors, are annexed to and pretended to be made part of said return, and (4) that said return is not a proper and sufficient return by the said board of supervisors of the county of Orange to said writ.

The writ was granted to review the action of defendants in relation to a bill of the relators for services as undertakers in caring for and burying unidentified dead at the request of the coroner.

Strahan & Me Clung {Wm. D. Dickey, of counsel), for app’lts;

John M. Gardner, for resp’ts.

This is an appeal from an order refusing to send back a return made by the board of supervisors of Orange county to a certiorari sued out by the relator.

The writ and return are also submitted for adjudication.

There is enough in the return to show that there is no merit in the application, and that the order refusing to send it back was right, and should be affirmed.

The writ was served upon the chairman of the board, and such service was good, and was so recognized by the respondents, and return made thereto. The fact that it was not signed by a majority of the members of the board is not material, as the return as made was authorized by said majority, and signed by the chairman and clerk, and properly filed in the county clerk’s office.

If the return contained some matters not material, it was not essential that it should have been sent back, but the same could have been treated as surplusage, and the court could have struck it out upon the hearing. As it in no way affected the merits, the relator was not injured by its presence in the return.

The order must, therefore, be affirmed, with ten dollars costs and disbursements. The parties have also submitted the certiorari and returns to be decided upon the merits.

Upon this matter it is sufficient to state that upon the evidence before the board of supervisors they had a right to fix the amounts to be allowed at the sums they did fix them, as the relator failed to present to the board the proper statutory proof of the amount due him. The statute provides “ that where there is no compensation fixed by law, the accounts for services shall particularly state the time devoted to the performance of the services for which the charge is made, and that they were necessarily rendered.” Birdseye’s Statutes, vol. 1, p. 731. This requirement the relator

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failed to perform, and the board could either reject the bill altogether, or allow what they considered a fair compensation. If the relator was dissatisfied, he could have applied for and had a rehearing. 65 N. Y., 222 .

This fact furnishes an additional reason why the relator should not have sought to review the action of the board by certiorari.

Writ dismissed, with ten dollars costs.

Barnard, P. J., and Dykman, J., concur.