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Brady v. Supervisors

4 N.Y. Super. Ct. 460 2 Sandf. 460 Court N.Y. Super. Ct. Decision date 1849-05-12 English

Contents

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Brady v. The Supervisors of the City and County of New York.

Headnote

A claim for services rendered as counsel for the board of supervisors of a county, and its various committees, is a county charge.
No action for the recovery of a county charge, can be maintained against a county, or the board of supervisors.
Suits against a county can be brought only for such causes of action or controversies, as cannot be settled and adjusted by the board of supervisors, in the exercise of their ordinary powers, such as torts, malfeasances of county officers, and the like.
The supervisors of a county, as such, or as a board, are not a body corporate, and possess no powers as a corporation. The corporation is the county.
(Before Oakley, Ch. X, and Vanderpoel and Sandford, X X)
March 5, 6, 7;
May 12, 1849.
Motion to set aside report of referees. The action was brought by the plaintiff to recover compensation for professional services rendered to the defendants during the years 1845, 1846, and 1847, while the plaintiff was counsel to the corporation. The declaration contained a special count adapted to the case, and also the common counts for work and labor. The plea was the general issue. By an order of the court, the cause was referred, on the 31st day of March, 1848, to John L. Mason, Benjamin W. Bonney and Nelson Chase, counsellors at law.
Upon the trial before the referees, it appeared in evidence, that the plaintiff was the general legal adviser of the defendants, and had been so from May 1st, 1845, to May 1st, 1847, and that during that time, at the request of the defendants, he had attended various meetings of the board of supervisors; that questions of law, involving important principles, had frequently arisen, upon the decision of which large amounts depended; and that these various questions were referred to the plaintiff, who had given his opinions upon the same; and that the services thus rendered by the plaintiff, required much time and labor in their performance.
It was contended, on the part of the defence, that the action being in form against the bounty, could not be sustained; because the services, if any, were a county charge; that the
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remedy in such cases, is pointed out by statute; that the claim must be presented to the board of supervisors, who are authorized and empowered to settle the same, and that, in the exercise of this power, they act as a judicial body. That if such an action could, be sustained, there was no evidence of any resolution of the defendants employing the plaintiff as counsel; and that the mere fact of the plaintiff’s attending meetings of the board, was not sufficient evidence of retainer. It was also contended, that admitting the fact of a retainer, the sum claimed by the plaintiff was not legally recoverable.
Various other points were made on the defence, which are not material to be reported.
The referees decided, that the action was maintainable, and that there was sufficient evidence of retainer, and reported in favor of the plaintiff for the sum of $2475 00.
J. T. Brady, and S. Sherwood, for the plaintiff.
I. The plaintiff having, as a counsellor at law, rendered services to the defendants, on their employment, has a right to recover whatever is a reasonable compensation for those services, unless some legal impediment to such recovery exists.
II. There is no such legal impediment. At common, la W; the plaintiff would clearly have a right of action against the defendants ; because any individual, who, at the request of another, renders him service of a lawful nature, can legally recover compensation in a court of justice.
That the defendants are supervisors would not, in reference to the common law right of the plaintiff, make any difference whatever.
They are a corporation, or quasi corporation, and, as such, can sue and be sued. This has been adjudged in relation to overseers of the poor, as well as supervisors. (Todd & M‘Cord v. Birdsall, 1 Cowen, 260; Olney v. Wickes, 18 J. R. 122; King v. Butler, 15 J. R. 281.)
They have the same right as a natural person to employ counsel, and are under the same obligation to pay him. The right to sue in such a case as this, has never before been questioned.
There is nothing in any statute which can deprive the plain
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tiff of his common law right of action against the defendants. Every county in this state is declared by statute to be a corporation, but only capable of exercising its corporate powers by the board of supervisors. (1 R. S. 365, secs. 2, 3.) This removes all doubt as to the capacity of defendants to sue and be sued. Express authority to bring suits against counties, by impleading the supervisors as defendants, is given in 2 R. S. 473, sec. 95.
The provision (1 R. S. 386, sec. 4,) requiring that “Accounts for county charges of every description shall be presented to the board of supervisors of the county to be audited by them,” is not an obligation imposed on those having claims against counties, but a mere legislative direction as to the proper authority to which those having such claims may present them* Construed in its exact language, it would make the presentation of such claims compulsory, even if the holders thought proper to abandon them. The words'“ shall or may,” when used in a statute, are only imperative when public interests and rights are concerned ; but when a statute declares that an individual or individuals shall or may do certain acts, or have a certain remedy, which is intended for his or their own benefit, he or they have a discretion to do the act or pursue the remedy, or not. (Malcom v. Rogers, 5 Cow. 188 .)
The statute in pari materia relating to “ legal proceedings in favor of and against counties,” (1 R. S. 384, sec. 1,) shows the correctness of the position above taken. It provides, that where any “ cause of action” exists between a county and an individual, the like proceedings may be had, and the same judgment, as in other suits or proceedings of a similar kind between individuals and corporation. This statute regulates the proceedings in such suits, and provides (sec. 6) for the recovery of costs, but does not make it conditional to a party's rights that he shall first present his claim to be audited. In the case of district attornies, where fees and expenses are made a county charge, there is a specific provision of the statute requiring him to give the supervisors notice of the taxation of his costs. (2 R. S. 752, sec. 9.) But there is no section of any statute requiring a private citizen who has a lawful demand
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against the county or supervisors, to postpone his action for such demand until they have acted upon it.
The plaintiff had no remedy by mandamus. The supreme court have distinctly settled, in several cases, that where the supervisors omit to pay or to audit, a party has a complete remedy by action, ahd that for this very reason, no mandamus will be allowed. (Ex parte Lynch, 2 Hill, 45 ; People v. Lawrence, 6 Hill, 244 ; Ex parte Firemens' Ins. Co., 6 Hill, 243 .) The writ of mandamus has, by all the later decisions of our supreme court, and court for the correction of errors, been restricted to what is supposed to be its only legitimate office, viz.: to compel an inferior tribunal to act where action is a legal duty, but not to direct such action. It is perfectly clear that no mandamus could compel the supervisors, either to allow the claim of the plaintiff in this suit if they thought proper arbitrarily to reject it, putting him to his action; nor could the supervisors be compelled to allow the plaintiff any particular amount. Even if it should be held, that in order to have an account against a county audited, a party should, or might, present it to the supervisors, and even if the party, on their failure or refusal to audit, could obtain a mandamus, yet the party’s common law right of action would not be impaired, because it is perfectly well settled, that “ If a statute give a remedy in the affirmative, (without a negative, express or implied,) for a matter which was actionable at the common law, the party may still sue at common law, as well as upon the statute; for this does not take away the common law remedy.” (Almy v. Harris, 5 J. R. 175 ; Farmer's Turnpike Co. v. Coventry, 10 J. R. 389; Crittenden v. Wilson, 5 Cow. 165 ; Troy Turnpike Co. v. McChesney, 21 Wend. 296 .)
The case in 5th Gowen, will be found very strong to this point.
III. The defence attempted, that the plaintiff rendered the services in question as counsel to the corporation, and without any intention to charge the defendants,"is without foundation, or even pretext, in fact or in law.
The defendants are a corporation, as already shown, by statute, representing the county of New York, and composed of the mayor, recorder and aldermen of the city of New York.
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As a corporation, the defendants may possess property, and exercise various powers enumerated in the revised statutes. (1 R. S. 364, sec. 1.)
The corporation of the city of New York, entitled “The Mayor, Aldermen and Commonalty, of the city of New York,” is a municipal corporation, created by charter, with additional powers conferred by statute, and with jurisdiction over the city of New York for municipal purposes. To the county corporation the recorder belongs, but not the commonalty. In reference to the city corporation, the converse is the case. The financial officer of the defendants is the county treasurer, and the reason why the chamberlain executes the duties of that office, is that the statute makes him treasurer. (1 R. S. 367, sec. 17; Ibid. 370 , sec. 29.) The comptroller of the city of New York is a charter officer belonging to the city corporation, without any power over the property or finances of the county, except where it is expressly conferred on him by statute.
From the preceding detail of the various characteristics of the city and county organizations, it is apparent that neither of them is under any obligation, or has any right to furnish the other with a lawyer, any more than the corporation of this city could perform this kindness for the county of Kings. The plaintiff never agreed with the corporation of the city of New York, that in consideration of a compensation to be paid by them, he would render any legal services to the board of supervisors ; and any such agreement, if any made, would be as void as absurd, there being no consideration to support it any more than if a policeman, in consideration of his salary, should, agree to perform duty in New Orleans for the benefit of the latter city.
F. B. Cutting, for the defendants.
I. The county of New York is a quasi corporation, created for the purpose of government, with special powers. It has power to sue and be sued in the name of the supervisors, who are the officers for the time being of the corporation. (1 R. S. 356, 364, 384, 385, 416; 2 R. S. 569, sec. 94; 26 Wend. 69 ; Ward v. Co. of Hartford, 12 Conn. Rep. 404 ; Kent’s City Charter, 209; 6 Hill, 244 .)
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' II. The supervisors are also a quasi corporation, created for special purposes, and with special powers. But they have no corporate capacity for their, own benefit. All their corporate powers are in trust, to be exercised for the use and benefit of the county. They may, in some cases, sue and be sued, but the action must be brought by and against them individually, specifying in the process, pleadings, and proceedings, their name of office ; and if their name be not mentioned, it is a ground of nonsuit at the trial. (2 R. S. 569, sec. 92, 94, 96, 99, 106, 111; Supervisors, &c. v. Stinson, 4 Hill’s Rep. 136; Commissioners &c. v. Peck, 5 Hill, 215 ; Jackson v. Hartwell, 8 Johns. Rep. 422 ; Jansen v. Supervisors of Kingston, 1 Cowen’s Rep. 670 ; Grant v. Franchor, 5 Cowen’s Rep. 309 ; 1 Cowen’s Rep. 260, note a.)
III. This action is not, therefore, in form, against the supervisors, and cannot be maintained against them; but being in form against the county, it must be considered as a suit against the county, and as such, it cannot be sustained ; for
(1.) The services rendered by the plaintiff, if any, for which this action is brought, are a county charge, having been rendered (as alleged) for the use and benefit of the county; and although a county may sue and be sued, yet it cannot be sued for any account or claim which is a county charge, and which it is the duty of the board of supervisors “ to examine, settle, and allow.” The remedy in such cases is pointed out by statute. The claim must be presented to the board of supervisors, with a just and true statement in writing of the nature of the services performed, and of “ the time actually and reasonably devoted •to the performance of such services,” to be audited, settled, and allowed by them. (1 R. S. 439, sec. 1, 2, 3, and 4; 1 R. S. 418, sec. 4, sub. 2; see also cases cited under next point below.)
(2.) The supervisors, as officers of the county, are clothed with judicial authority to “ examine, settle, and allow all amounts chargeable against the county,” and “to administer .oaths to any person presenting an account or claim to be audited,” and concerning any matter submitted to the board. (1 R. S. 418, sec. 4, sub. 2; 1 R. S. 420, sec. 8; Laws of 1836, chap. 506, sec. 3; Laws of 1845, chap. 180, sec. 22; Supervisors of Albany, 12 J. R. 414; Supervisors of Dutchess, 9 Wend. 508 ;
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Supervisors of New York, 1 Hill, 362 ; Merrit v. Lawrence, 6 Hill, 244 ; Ex parte Lynch, 2 Hill, 45 ; Supervisors of Warren, 1 Howard Sp. Term Rep. 116.)
(3.) In giving judicial powers to the board of supervisors “ to examine, settle, and allow” all claims for county charges, the legislature intended to protect the county against the exorbitant claims and the innumerable suits that might, and no doubt would otherwise be brought against the county, nor is there any injustice in this, since all persons performing services for the use and benefit of a county, must be presumed to know and assent to the mode pointed out by the statute for the collection of their claims.
(4.) The uniform practice, in cases like the present, has been to proceed by mandamus; and a mandamus will not lie where there is a legal remedy. ( 10 Wend. 363 .)
IT. But should it be considered that a suit can be maintained to recover claims for . county charges, still the plaintiff is not entitled to recover in this suit.
(1.) The testimony shows affirmatively that the board never adopted any resolution to employ the plaintiff as counsel, and there is no evidence that they ever adopted any resolution authorizing any individual or committee thereof to employ him. The statute no where gives power to a member, or a committee of the board, to contract liabilities and charges against the county, for the professional services of a lawyer. (1 R. S. 364, sec. 1, 2, 3, 4; compare with Statutes relating to Towns, 1 R. S. 357, &c.; Conall v. Town of Guillford, 1 Denio, 510 ; Hotchkiss v. Le Roy, 9 John. 142 , as to evidence of retainer.)
(2.) If the committees, or any member thereof, consulted the plaintiff and requested him to give opinions and draw reports and resolutions, it was for their convenience and without the authority of the board. The plaintiff’s claim for such services, if any he has, is against individual members of the committees, or persons employing him, and not against the county, nor against the board, who, for aught that appears, never knew that he was consulted or employed by such committees or persons. ( 19 Johns. Rep. 252 .)
(3.) The mere fact that the plaintiff attended the meetings of the board, (if a contract could be implied, as in the case of in
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dividuals,) is not sufficient evidence of employment to create an implied assumpsit; as the meetings of the board are public. (1 R. S. 420, sec. 6.) He may, if observed, have been considered a mere spectator. At all events it cannot be presumed from this, that the board knew that he was in their service at the time, so as to create an implied assumpsit to pay therefor.
(4.) Nor were the notices sent to him any evidence of employment ; inasmuch as those notices were usually sent by order of the comptroller, who was not a member or any officer of the board ; and when not sent by his direction, it was by the direction of the chairman of some committee ; as they were delivered by the messenger without any direction on the subject. Such notices, therefore, were not authorized by the board and were not binding upon them; it no where appearing that the board ever directed him to be notified, or that they knew that he was so notified. Besides, the weight of evidence shows that when so notified, the notice was given to him as the counsel to the corporation of the city, and not otherwise.
(5.) There is no evidence of any retainer in the case of Lynch and Parish. The statute requires that when a suit is commenced against the supervisors, a statement thereof shall be laid .before the board for their direction. (1 R. S. 439, sec. 3.) There is no evidence that this was done in these cases, nor in the cases of taxation of costs. All the evidence then, of a retainer, which has been offered, is the mere fact that the plaintiff appeared in those suits and proceedings on behalf of the board; that is not sufficient; especially when the evidence on the part of the defendants goes to show that he had charged these very services to the corporation of the city of New York, whose counsel he was at the time, and who were as much interested in the subject matter in which his services were rendered as the county. (Hotchkiss v. Le Roy, 9 Johns. Rep. 142 .)
Y. But even if the evidence were sufficient to establish the fact that the plaintiff was employed, still, it also shows that he was employed by a branch of the common council, and as the counsel of the common council, upon matters connected with and directly concerning the business of the city corporation ; and it was his duty as such counsel to render those services for the salary and other compensation which was paid to
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him by the corporation, through the board of supervisors ; and he has no right to make an extra charge for such services. They were all included within his contract with the corporation. He has, therefore, been fully paid the claim which he seeks to recover in this cause. (Rev. Ord. 1838-9, p. 13, &c.; Phœnix v. Supervisors of New York, 1 Hill, 362 .)
VI. The evidence of Mr. Blunt as to the value of the services of the plaintiff, from hearing the evidence read, was incompetent, and should be excluded, and also all those parts of the evidence which refer to the contents of resolutions of the board or of its committees.

The defence relied upon, is two fold:

First. It is insisted that the services of the plaintiff, for which the action is brought, were rendered by him in his character as ■counsel of the corporation, appointed by the common council of the city of New York.

The written opinions and reports prepared by the plaintiff and exhibited on the trial, appear to have been signed by him with the official addition of “ counsel to the corporationand it is claimed by the defendants, that the supervisors of, the city and county of New York, are in fact and in substance, the same as the corporation of the city of New York ; as they govern the same territory and the same people, and represent identically the same interests ; and that the salary of the plaintiff, as counsel of the corporation of the city, ought to be held to cover his services in this respect.

We have not much considered this point, and in the view we have taken of the case, it is not necessary for us to decide it.

Assuming that the plaintiff stands towards the board of supervisors, in the same attitude that any other professional gentleman would, who had performed the same services, and that he is entitled to recover, if any person could recover; the next ground of defence is, that for services of this character, no action at all can be sustained against the supervisors of the county, or rather against the county.

The plaintiff, from the points submitted, appears to have en

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tertained the idea, that the supervisors, or the hoard of supervisors, are a body independent of the county which they represent ; and as such may incur liabilities, and be subject to suits, as a board or corporate body.

This we deem erroneous. The supervisors as such, or as a board, are no body corporate, and possess no powers as a corporation. The corporation is the county.

The revised statutes, (1 R. S. 364,) under the head “ Of the Powers, Duties and Privileges of Counties, and of certain County Officers,” proceed to erect a system, regulating this whole subject.

The first section of title first, declares that each county, as a body corporate, has capacity:

1. “ To sue and be sued in the manner prescribed by law.

2. To purchase and hold lands within its own limits, and for the use of its inhabitants, subject to the power of the legislature over such limits.

3. To make such contracts, and to purchase and hold such personal property, as may be necessary to the exercise of its corporate or administrative powers; and

4. To make such orders for the disposition, regulation, or use of its corporate property, as may be deemed conducive to the interests of its inhabitants.”

The second section enacts that no county shall possess or exercise any corporate powers except such as are enumerated in that statute, or shall be specially given by law, or shall be necessary to the exercise of the powers so enumerated or given.

The third section is as follows: “ All acts and proceedings by or against a county in its corporate capacity, shall be in the name of the board of supervisors of such county; but every conveyance of lands within the limits of such county, made in any manner, for the use or benefit of its inhabitants, shall have the same effect as if made to the board of supervisors.”

And section four provides, that the powers of a county as a body politic, can only be exercised by the board of supervisors thereof, or in pursuance of a resolution by them adopted.

Looking at these provisions of the revised statutes, it will be perceived that every county is a corporation with defined and

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restricted powers, to be exercised in a particular manner, viz.: by the board of supervisors itself, or by some person in pursuance of a resolution by them adopted. There is no grant of corporate power, to be used by or in behalf of a county, in any other mode.

In the city and county of New York, the aldermen of the city, together with the mayor and recorder, constitute the board of supervisors, which exercises the powers conferred by this chapter of the revised statutes.

Proceeding with its provisions, the fourth section of title second gives to the board of supervisors of every county, at their annual meetings, or at any other meeting, power, “ To examine, settle, and allow all accounts chargeable against such county; and to direct the raising of such sums as may be necessary to defray the same(Subd. 2.) “ To audit the ac-

counts of town officers,” &c.; (Subd, 3.) By the eighth section, the chairman of the board, is clothed with power to administer an oath to any person, concerning any matter submitted to the board, or connected with their powers or duties.

Each board is entitled to have a clerk who is to record all the proceedings of the board; and it is made one of his duties, to make regular entries of all the resolutions and decisions of the board, on all questions concerning the raising or payment of moneys. He is also to preserve and file all accounts acted upon by the board. (I 9.) The books and records of the boards of supervisors are open to public examination, without charge. (§ 11.) The third title of the same chapter of the revised statutes, (1 R. S. 384,) is entitled, “ Of legal proceedings in favor of and against counties.” The first section provides, that if any controversy or cause of action shall exist between the counties, or between a county and an individual, such proceedings shall be had, at law or in equity, for trying and finally settling the same, in like manner, and with like effect, as in similar suits or proceedings between individuals and corporations. By the second section the county, in all such suits and proceedings, shall sue or be sued in the name of the board of supervisors thereof, except where county officers are, by law, to sue in their name of office, for the benefit of the county. . When a suit is commenced against a county, the chairman or clerk of the board, must lay

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before the board of supervisors, a full statement of the suit, for their direction in regard to its defence. (§ 3.) The sixth section provides for the recovery of costs, and that judgments recovered against counties, or against county officers in their name of office, shall be a county charge, and when levied and collected, shall be paid to the person to whom the same shall have been adjudged.

These provisions as to suits, are further carried out in the subsequent chapter of the revised statutes, entitled, “ Of proceedings in special cases,” in the title, “ Of proceedings by and against corporations, and public bodies, having certain corporate powers, and by and against officers representing them.” (2 R. S. 444,- 457, 473.) Section ninety-two of title four permits actions to be brought “ by the supervisors of a county;” but actions against counties, when allowed by law, are to be brought against the board of supervisors thereof, (s 95.) Such actions as are allowed against the officers enumerated in section 92, must be brought against them individually, specifying their name of office; (§ 96;) and it is therefore inapplicable to suits against a board of supervisors, or the supervisors of a county, as such. It is further enacted, in the same article and title, that no execution shall issue on judgments recovered against the board of supervisors, and it prescribes the manner of obtaining payment of such judgments, by laying the same before the board of supervisors, to be by them added to the tax to be laid on the county. (§ 102, 103, 107.)

It will be observed that by these various provisions of law the board of supervisors is clothed with ample power, to examine, settle, and allow all accounts, chargeable to the county; or in other words, which may be county charges. And the county may be sued for certain claims, or in respect of certain causes of action or controversies, as expressed in the third title before cited. (1 R. S. 384.)

It is claimed by the plaintiff, that the first section of this title, enables individuals to bring suits against a county, for any claim, cause of action or controversy whatever; although the same, may be an account, which might be allowed as a county charge.

We consider that a different construction must be given to

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the third title; and that it was intended to provide a remedy against the county, for such causes of action, (and no other,) as could not be presented to and examined and allowed by the board of supervisors as county charges. Of this class, would be claims for the malfeasances of county officers ; and claims arising from torts, for which the county may be liable.

“ Such controversy,” in the first section of that title, means as we think, such a claim or cause of action as cannot be settled and adjusted, on the application of the party, in the exercise of the ordinary powers of the board of supervisors, and which is not a county charge until it passes into judgment.

The inquiry is, whether in cases (like the plaintiff’s,) an action can be brought at all, against the board of supervisors. Here no account has been presented to the board, for audit and allowance. The suit rests on the distinct claim, that every one who has a demand against a county, on an implied contract, may sue the county for its recovery; and that any one who has submitted such a demand .to the board of supervisors, for their examination and allowance, may abandon his pursuit there, and commence a suit against the board as “representing the" county.

The maintenance of this claim will necessarily lead to interminable suits against the counties, for every description of accounts and demands. We think it was clearly the intention of the legislature, to protect counties from such suits. The board of supervisors, as organized by law, consists of a body of men, ■elected by the people to represent their respective towns and wards. They have no interest against claimants, nor any feeling on the subject, other than that of every judge and every citizen. The statute virtually makes this body, a board of arbitration ; to which all parties, having claims against their respective counties, other than those of the indefinite character before referred to, must submit such claims for examination, audit and allowance ; and it allows no appeal from their decision. They are a judicial body, constituted by law to decide on all matters of account between individuals and the public body composing the county which they represent.

If, in this case, the plaintiff had contracted specially with the

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board of supervisors, to receive such compensation for his services as they might allow, the arrangement would have been binding upon him. As the law prescribing the mode of ascertaining claims of the like character exists, we consider the services of the plaintiff as having been rendered under the law ,* and that the law, in effect, is incorporated into the contract. The plaintiff must be presumed to know the law, and to have contracted in reference to it.

It is not to be doubted that the plaintiff’s claims are county charges, and might have been submitted to the board of supervisors for allowance. He claims by force of an implied contract of the board, for services which were beneficial to the board, and thus to the county.

The supreme court had the statutes on this subject under consideration in Bright v. Supervisors of Chenango, ( 18 Johns. 242 ; Mallory v. Supervisors of Cortland, and Doubleday v. Supervisors of Broome, ( 2 Cow. 583 ;) and The People v. Supervisors of Albany, (12 Wen. 257.)

Those cases establish this general principle, that wherever services have been rendered, which are beneficial to a county, and no specific compensation is provided for the same by law, they shall be deemed contingent charges against the county.

The services of the plaintiff are precisely of that character.

It will be seen by reference to the statute regulating the powers of county officers, (1R. S. 385, § 3,) that after specifying various liabilities and demands, which shall be deemed county charges, the fifteenth subdivision includes “ The contingent expenses necessarily incurred for the use and benefit of the county.” These are to be examined, settled and allowed, by the board of supervisors; and the fourth section of the same title, contains the general direction before mentioned, that accounts for county charges of every description shall be presented to the board to be audited by them.

It is said the statute is directory only, and if the plaintiff’s claim fall within the description of a county charge, it was optional with him to submit it or not, to the board of supervisors.

We cannot give such a construction to the statute. The

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fourth section is peremptory in its terms, that all accounts for county charges shall be submitted to.the board; and it is an essential part of the whole system, framed with the intention that no action at all should be brought against a county for such services.

There is no hardship in the provision of the statute thus construed. The services in this case were rendered voluntarily, as the plaintiff might have declined to render them, if he did not approve of the mode of compensation provided by law.

We find no adjudged case, where it has been held that an action may be sustained against the supervisors of a county, for such claims. There are many cases reported, in which writs of mandamus have been issued to boards of supervisors. There is none of those, where the amount to be audited was not fixed by statute, or where the amount claimed was not admitted; and where the sole question was, whether the claim presented to the board was a county charge; and in those cases, the supreme court has ordered the supervisors to proceed and audit the claim.

The plaintiff refers us to the case of Ex parte Lynch, ( 2 Hill, 45 .)

There the supreme court refused to issue a mandamus, to the supervisors of the city and county, because the relator had an action against the corporation of the city of New York, inasmuch as the statute directed the corporation to pay him a specified salary. It was not intimated that he could maintain a suit against the county, or the board of supervisors. And where that court has granted the writ of mandamus, it has been because there was no remedy by action. (The People v. Supervisors of Columbia, 10 Wen. 363.)

We find no case in the books, where the idea is presented, of bringing an action ugainst a county, or against a board of supervisors, for such a claim as the plaintiff’s; or where it appears to have been thought of before.

This disposes of the case before us, and it is perhaps not necessary that we should notice another view of the matter, which is urged by the defendants; that the board of supervisors, by their acts, can charge their county only in the mode

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prescribed by the statute. That here the action on which the plaintiff’s claim is based, was wholly informal and ineffectual; the board as a body, never having acted at all, or adopted any resolution on the subject, and never having authorized any committee to engage the professional services of the plaintiff.

It may well be questioned, whether their action as a board, or of their committees, as proved in this case, could charge the county as a body politic. But we need not decide the point.

The plaintiff must fail, on the ground that his claim is a county charge, for which no action can be sustained against the board of supervisors. The report of the referees must be set aside, with costs to abide the event of the suit; and the rule directing a -reference will be discharged. The parties can readily turn the special report of the referees into a bill of exceptions, as upon a trial at nisi prius, and a non-suit there ordered, if they choose to do so, with a view to ulterior proceedings.

Cases cited