Hyperlawhypertext legal database People ex rel. Wells v. Board of Audit of Town of Hempstead 11 N.Y. Sup. Ct. 94

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People ex rel. Wells v. Board of Audit of Town of Hempstead

11 N.Y. Sup. Ct. 94 Court N.Y. Sup. Ct. English

Delivered by Tappen, J.:

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p. 94
THE PEOPLE ex rel. OBADIAH WELLS, Appellant, v. THE BOARD OF AUDIT OF THE TOWN OF HEMPSTEAD, Respondent.

Headnote

Town auditors—mandamus to—when allowed.
Where, after the adjournment of a board of town auditors, an order is granted ' requiring them to show cause why a mandamus should not be allowed to compel them to allow a claim of the relator, the adjournment will prevent the enforcement of the peremptory writ against the members thereof ; but where such, writ will lie, it may issue to be enforced at the next lawful meeting of the board.
Appeal from an order made at the Sjiecial Term denying an application for a mandamus to compel the defendant to audit a bill of the relator for money paid out as counsel fees in an action brought for the benefit of the town of Hempstead.
A. N. Weller, for the appellant.
John J. Armstrong, for the respondent.

A special town meeting was held in the town of Hempstead, on the 3d of July, 1814, after due notice, at which a resolution was adopted, by ballot, directing suits to be commenced against certain persons, to recover certain common lands of the town. The sum of $400 was appropriated for the expense of the suits, and the relator, Obadiah Wells, was, by the same meeting, appointed attorney to institute the same. The suits were commenced, and a bill rendered by him against the town for $255, for the money claimed to have been expended by the relator for counsel fees and other expenses in such suits. The board of town auditors, at a regular meeting, on the 28th November, 1814, had this bill' before them, and passed a resolution rejecting it. The relator seeks, by mandamus, to compel the allowance of the claim. The Special Term denied his motion for the writ, and he now appeals to the General Term. The respondents say that the board of auditors had closed their hearings of accounts against the town, and had delivered their

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certificate thereof to the supervisor, to be laid before the board of supervisors, and that this was done before the relator’s claim was presented. Also, that the order of the Special Term requiring the respondents to show cause, was not granted until after the board of auditors had adjourned sine die.

We think the call for the town meeting sufficiently specific, and the proceedings at such meeting regular, and in accordance with the statute. Instead of intrusting the prosecution of the action to the supervisor, the town devolved that dirty upon the relator. In .making an appropriation it expressly agreed to pay to the relator his reasonable expenses in 'the performance of that duty. That a mandamus in cases of this kind is the appropriate remedy is held in Bell v. Town of Esopus,[1] and in Brady v. Supervisors,[2] The proceedings at the meeting were within the rule in Cornell v. Town of Guilford;[3] and that the hours of meeting were not irregular, see 5 New York, page 22.

That the board of audit had adjourned formally and without naming a day for reassembling, is a reason why the peremptory writ cannot now be enforced against the members thereof;[4] but where the writ will lie it may issue, to be enforced at the next lawful meeting of the board.

The order of the Special Term should be reversed, with ten dollars costs, and the peremptory writ allowed, with ten dollars costs.

Present — Barnard, P. J., Tappen and Gilbert, JJ.

Ordered accordingly.

* 49 Barb., 506 .

† † 2 Sandf.; affirmed 6 Seld., 260.

‡ ‡ 1 Denio, 510 .

§ § The People v. Board of Auditors of Town of Westford, 53 Barb., 555 ; affd. 38 How., 23 .