
    COURT OF APPEALS.
    People ex rel. Supervisors of Ulster County agt. Common Council of the City of Kingston.
    
      Taxation — Costs on appeal from equalization of valuations — By whom paid— Board of supervisors power to audit such costs — Practice—Demand for hewing — Mandamus—Authority of hoard of supervisors to obtain — Neglect to levy equivalent to refusal to pay.
    
    Where the board of supervisors of Ulster county audited a bill for costs and expenses of an appeal to the state assessors, by the supervisors of the city of Kingston, from the equalization of valuations against that city, although requested hy the latter to wait until they could be beard on the matter; and the city of Kingston obtained a writ of ceriiorwi to review the proceedings, which w;as dismissed, a.nd on the defendants failing to levy the tax necessary to pay the hills, an order for a mandamus was granted at special term to compel them to do so, and affirmed at general term. On appeal from order at general term of affirmance :
    
      Held, that the order granting the mandamus was proper and should he affirmed.
    Where an appeal from equalization of valuations is sustained, the costs must he assessed to the wards, towns and cities in the county other than the appellant, hut if it he not sustained, then they must he borne hy the town, ward or city appealing.
    The legislature has the power to constitute the hoard of supervisors a hoard to audit the expenses against the city, and the latter did not come within the statute prohibiting a judge from sitting in a case in which he is a party or is interested.
    Where the city supervisors did not make a demand for a hearing until just before the time for the adjournment, they having knowledge of the matter for some time before, no legal right was invaded by the denial of the application for delay.
    The board of supervisors had an interest to enforce the collection against the city, and although it did not directly authorize its attorney to procure ‘amandamus, its general retainer “in all matters in litigation,” and the appointment of the committee, conferred ample authority to uphold this proceeding.
    The omission of the city, while laying other taxes, to include these items, was equivalent to a refusal to pay it after the proceedings taken.
    
      Decided January, 1886.
    The order which is the subject of this appeal affirmed an order of the special term in mandamus proceedings, instituted December 6, 1884, commanding the common council of the city of Kingston to levy and collect upon the taxable property of the city the sum of $18,308.07, audited by'the board of supervisors December 3, 1883, for costs and expenses incurred by the board on an appeal to the state assessors, taken by the supervisors of the city of Kingston, November 28, 1882, from the equalization of the valuation of the real and personal property of the several towns and wards in the county of Ulster, made by the board of supervisors at its annual session in that year. The appeal came on to be heard before the state assessors, and was dismissed November 16, 1883. The board of supervisors, on the 29th of November, 1882, after said appeal was taken, appointed a committee to take charge of the interests of the board on the appeal, with power to employ counsel and such clerical and other assistance as the committee should deem necessary, and take such measures as their counsel might advise or as they should deem meet and proper in the premises. Pursuant to this authority counsel were employed, and upon their advice the committee caused abstracts to be made of all conveyances recorded in the clerk’s office of Ulster county for the period of five years, commencing January 1, 1878, stating the consideration named in each case. The expense of obtaining these abstracts exceeded $2,000. The committee, also, by advice of their counsel, caused, an appraisal to be made of each parcel at land of which, there was a several ownership in the county of Ulster, by appraisers appointed by them for each town and ward in the county (there being sixty-three appraisers in all), at an expense of $9,570.03. Other expenses were incurred for clerical and other work, stenographer’s fees, house hire, printing, &c., including the sum of $1,227.84 for special services of persons who, at the time, were members of the board of supervisors. The aggregate expenses, including therein $4,500 for services of counsel, as audited by the board of supervisors December 3, 1883, after the decision of the state assessors, amounted to the sum of $21,446.99.
    The town of Marbletown also appealed from the equalization of 1882, which appeal was taken at the same time as the appeal by the city of Kingston, and the two appeals were carried along concurrently, and were heard together by the state assessors, with the same result in each case. The board of supervisors, upon auditing the costs and expenses as above stated, apportioned them as between the town of Marbletown and the city of Kingston, upon the basis of the total equalized valuation of the town and city respectively; the sum of $18,337.18 being apportioned as the share of the city of Kingston, and the sum of $3,109.81 as the share of Marbletown.
    Prior to the decision of the state assessors, the board of supervisors and the city of Kingston respectively submitted to the assessors a statement in detail of the expenses incurred by each. The statement of the board of supervisors corresponded in the aggregate with the sum as audited December 3, 1883, to wit, $21,446.99, and the expenses incurred by the city, as presented to the assessors, amounted to about the sum of $18,800. Prior to the audit, and on the 21st of November, 1883, the board of supervisors (being then in session) appointed a committee to examine the bills *ef expenses incurred by the board on the appeals in the equalization proceedings, and to report The bills, prior to that time, had been duly verified by the several claimants, and presented to the state assessors, and had been certified as correct by the committee originally appointed to act in behalf of the board, and it appears by nncontradicted evidence that the supervisors of Kingston and the counsel for the city, as early as on the 13th of November, 1883, 'were informed of the amount of expenses claimed to have been incurred by the board of supervisors. On the 1st of December, 1883, the counsel for the city notified the committee appointed November 21, 1883, that the city desired to be.heard upon the matter of the audit, and to give testimony in respect to the bills presented On the 3d of December, 1883, the committee reported to the board, and, on the report being read, the supervisors of Kingston requested the board to postpone the consideration until the next day, in order to give them time to examine the bills and make such objections as they might desire. The board, however, proceeded to act upon the report, and made the audit as before stated. No specific objections were made by the supervisors of Kingston to any of the' items. It appears that it was the practice of the board of supervisors at its annual session to adjourn from the 5th of December to the 15th, to enable the clerk to prepare the tax warrants for delivery to the proper officers. The return of the board of supervisors in the certiorari proceedings, hereafter referred to, and which is in evidence in the case, states that the application for delay was regarded as not having been made in good faith, but to prevent the auditing of the bills at that session of the board On the 7th of December, 1883, the city of Kingston procured a writ of certiorari to be issued to review the proceedings of the board of supervisors upon the matter in question. The affidavits used on the application for the writ show that the supervisors of Kingston, at that time, bad full knowledge of the contents of the bills. The board of supervisors made return to the certiorari, and it was dismissed by the supreme court, May 31, 1884 An appeal was taken by the ci1y to the court of appeals, and that court, having intimated on the argument that the order in the form in which it was made was not appealablé, permitted the appeal to be withdrawn, with a view to an application to the court below for an amendment of the order, which application, however, on being made, was denied. Subsequently, and on December 4, 1884, the prior litigation having been ended, the board of supervisors, by resolution, directed that so much of the sum of $21,446.99 originally audited as was audited to persons who were supervisors, viz., $1,246.09, be levied and assessed on the county outside of Marbletown and Kingston, and that of the balance of said amount, $17,271.77, with interest, mating in all $18,808.07, “ be raised, levied and assessed ” upon the taxable property of the city of Kingston, and be paid to the treasurer of the county. This sum was, on the 5th of December, 1884, included in the schedule of amounts to be raised for state and county expenses by the city of Kingston, and delivered by the board of supervisors to the defendant on the same day. The common council directed the raising of the amounts of the other items in the schedule, but omitted to take any action in respect to this item. The mandamus proceedings were commenced December 6,1885. It is claimed that they were instituted without the authority of the board of supervisors.
    
      John J. Linson, for appellant,
    
      Alton B. Parker, for respondent
   Andrews, J.

The order made by the general term on the return to the writ of certiorari was not res adjudicata as to the validity of the assessment It did not affirm or reverse the proceedings, but dismissed the writ. The allowance or refusal of a common-law certiorari rests in the sound discretion of the court The dismissal of the writ was an exercise of this discretion ; and the character of the order, as a discretionary one, is not altered by the fact that the court, in its opinion, examined the proceedings, and considered them regular (People agt. Stilwell, 19 N. Y., 530; People agt. Hill, 53 id., 547; People agt. Board of Com'rs, &c., 82 id., 506). It is claimed in behalf of the city of Kingston, that the statutes regulating appeals to the state assessors, from tbe equalization of tbe board of supervisors, does not, on the appeal being dismissed, authorize the charging, against the town, city or ward appealing, the costs and expenses incurred by the board of supervisors in defending the appeal. This depends upon the construction of the statutes regulating this proceeding. The right of appeal from an equalization made by a board of supervisors was first given by chapter 312 of the Laws of 1859. Under that act an appeal was authorized to be taken, by the supervisors of any town, city or ward, to the state comptroller, who was authorized to determine ■ what reduction, if any, ought to be made from the valuation fixed by the board of supervisors, of the property of the town, city or ward (sec. 13). No provision was made in this act for-costs to either party. The act of 1859 was first amended by chapter 327 of the Laws of 1873. This last act added a section to the original act as follows:

“ Sec. 15. Whenever an appeal shall not be sustained, the-costs and expenses arising therefrom and connected therewith shall be made a charge upon the town, city or ward so appealing, which shall be audited by the. board of supervisors, and levied upon-the taxable property in said town, city or ward”

This provision remained unchanged up to the time of the audit in question. It will be observed that the act of 1873 made no provision for costs and expenses in case the appeal was sustained. This was first provided for by chapter 351 of the Laws of 1874, which added a clause to section 15 making it the duty of the comptroller, in case the appeal was sustained, to certify the reasonable costs and expenses of the appellant, and providing that the amount so certified should be audited by the board of supervisors, and collected from the towns and cities in the county other than the appellant The act (chap. 80 of the Laws of 1880) further amended section 15 by substituting the state assessors as the certifying body, in place of the-comptroller, when an appeal was sustained, and also providing that in that event the costs and expenses of both appellant and. respondent should be audited and collected from the towns and cities other than the appellant This was the condition of the legislation on the subject of costs and expenses on appeals in equalization proceedings in 1883, when the audit in question was made. The precise contention of the city of Kingston, as we understand it, is that the provision in the act of 1873 was not intended, in case the appeal was not sustained, to charge the costs and expenses incurred by the board of supervisors against the appealing town, city or ward, but was intended simply to protect and indemnify the supervisors by whom the appeal was brought, against the costs and expenses incurred by him in behalf of his town, and to put it out of the power of the town authorities to repudiate the claim, and saddle upon the .supervisor the burden of the costs and expenses of the litigation. This construction has no support in the language of the act of 1873, and still less in the legislation which followed it. The acts of 1874 and 1880 expressly give costs to the appellant against the county in case the appeal is sustained, and it is quite difficult to suggest any reason for exempting the town, ward or city from a corresponding liability when the appeal fails. The construction of the act of 1873 contended for by the appellant is strained and unnatural, and, moreover, if the intention of the legislature was, as is claimed, to protect the supervisor as against the town, the act failed to afford complete protection, because it makes no provision for costs and expenses incurred by the supervisor in a case where the appeal is successful. We think the act of 1873 authorized the costs and expenses incurred by the board of supervisors on the appeal to the state assessors to be charged upon the city of Kingston. The costs and expenses audited by the board and charged upon the city embraced compensation to counsel, appraisers, and employes, and disbursements amounting in the aggregate to more than $17,000.

It is asserted that many of the items audited were not such as would be taxed in favor of the prevailing party in an ordinary action. It is not claimed that any of the expenses audited were not incurred, or that they were incurred in bad faith. It •certainly must be conceded that the preparation on the part of the board of supervisors to meet the issue presented by'the ■.appeal was very thorough. It, however, may well be doubted whether it was discreet or just to impose upon the city of Kingston and the town of Marbletown the entire expense of searching for and making abstracts of all the conveyances recorded in Ulster county for a period of five years, and of appraising every •separate piece of real estate in the county. It may be assumed that few appeals will be taken to the state assessors from equalizations, at the hazard of paying such enormous expenses. The mass of evidence collected by the supervisors will doubtless be very useful in future equalizations, but the equity of -charging the whole cost of the information upon the appellants in this case is not very apparent But we have to deal only with the question in its strictly legal aspects. The act (chap. 49 of the Laws of 1876) amending the act of 1859 contemplates that evidence of valuation of real and personal property in the county shall be given, and it appears, without contradiction, that such evidence has usually been produced and received by the state assessors. The statute of 1873 is very broad. All •costs and expenses of the appeal, “ arising from or connected therewith,” are chargeable. It constitutes the board of supervisors the auditing tribunal. What particular items shall con.stitute the costs and expenses mentioned, are not defined It •cannot be said that the employment of necessary appraisers and searchers, at a reasonable per diem compensation, and making the necessary disbursements in preparing for the investigation, were not legal items of expense chargeable under the statute. The determination as to their allowance the statute relegates to the board of supervisors, and the decision of the auditing board .•as to the amount, necessity, and reasonableness of the expense incuiTed, in the absence of fraud or collusion, is final and con-elusive (Osterhoudt agt. Rigney, 98 N. Y., 222).

It is further objected that the legislature could not constitute •.the board of supervisors a board to audit the expenses chargeable against the city — the other party to the appeal — on the-ground that thereby it was made a judge in its own cause. The authorities are decisive against the objection. The board ■ of supervisors collectively had no interest to be affected by the-audit, and-its members as individuals had no interest other than was common to every tax-payer in the county. In making the audit they were discharging a duty of public administration cast upon them by law, and were neither within the letter nor-spirit of the statute prohibiting a judge from sitting in a case in-which he is a party or is interested (People agt. Wheeler, 21 N. Y., 82; Folger, J., in Re Ryers, 72 id., 15; Foot agt. Styles, 57 id., 399).

It is also objected that the board of supervisors denied a hearing to the supervisors of Kingston and their counsel, prior-to the audit The supervisors of the city were members of the board. The board, in its aggregate capacity, in exercising the powers conferred by statute, represented, not only the whole county, but each town and ward therein affected by its proceedings. The return to the certiorari, which is in evidence, shows-that the demand for a hearing was not made until shortly before the time fixed for the adjournment of the board, and that in fact the supervisors of Kingston had knowledge of the bills presented for audit for some time before the demand was made, and, so far as,appears, might have interposed any objections-thereto. We think, under the circumstances disclosed, no legal right of the defendant was invaded by the denial of the application for delay.

The inclusion, in the original audit, of allowances to persons-who were supervisors, for special services rendered, amounting in the aggregate to $1,227, is not now in question. This sum is-excluded from the amount sought to be charged against Kingston, and its inclusion in the original audit, if erroneous, in the-final result inflicted no injury upon the appellant

The point is also taken that the proceeding by mandamus, now under review, was never directed or authorized by the-board of supervisors of Ulster county, and that for this reason the order maintaining tbe writ should be reversed. We entertain no doubt that tbe board of supervisors bad such an interest in enforcing tbe collection of tbe costs audited by tbe board, and charged against tbe city of Kingston, that it could authorize any proper proceeding to be taken in its behalf to that end. It was the party respondent in tbe appeal. It was its duty, as tbe representative of tbe county, to defend its equalization if it believed it to be just, and, as incident to tbe duty, it could incur tbe necessary expenses in defending its action. Tbe county incurred them, and was in tbe first instance liable for their payment Tbe expenses, when incurred, were, we think, county •charges. Tbe statute enumerates as among county charges (1 R. S., 385, sea. 3, subd. 15) “tbe contingent expenses necessarily incurred for tbe use and benefit of a county.” It has been frequently held that services rendered to a county in pursuance ■of a legal employment, for which no specific compensation is provided, are contingent charges against the county (Bright agt. Supervisors, &c., 18 Johns., 242; People agt. Supervisors, &c., 12 Wend., 257; People agt. Supervisors of Delaware, 45 N. Y., 196). It is true that tbe act of 1873 declares that, if tbe appeal is not ■■sustained, tbe costs and expenses “ shall be a charge on tbe town, city,” &c. But it cannot be known, until tbe decision of the state assessors, whether any costs or expenses will be chargeable against tbe party appealing. Tbe board of supervisors must •of necessity incur tbe expenses in tbe first instance on its own ■credit, and, having done so, it has a remedy over against tbe town, city or ward, in case it succeeds on tbe appeal. Tbe board of supervisors, therefore, bad an interest to enforce the collection ■of tbe charge against tbe city of Kingston.

Tbe precise point is that it did not authorize its attorney to pursue tbe remedy by mandamus, or take other legal proceeding to enforce its right We think tbe resolution of December 4, 1883, for tbe employment of judge Parker, as counsel, “ in ■all matters in litigation ” growing out of tbe equalization appeal, and authorizing him “ to take all necessary and proper proceedings in the name of tbe board in tbe actions and proceedings referred to,” supplemented by the appointment of a committee,. December 12, 1883, with full power to do all things in the litigation and incur such expenses therein as they might deem necessary in behalf of the board, conferred ample authority upon the counsel and committee to direct the commencement of this proceeding. The criticism upon the resolution of December 4, 1883, is that it only refers to matters “in litigation,” and not to future litigation. This is quite too technical, in view of' the fact that no litigation was then pending, and the resolution would be without meaning unless it referred to the controversy as to the audit and to litigations which might grow out of it.

The final objection is that the charge against the city of’ Kingston for the costs and expenses of the equalization appeal cannot be enforced through the ordinary statutory machinery for the collection of taxes in the city. The charter of Kingston-provides a special system for the collection of taxes therein. The board of supervisors do not issue any warrant for the collection of the state or county tax chargeable upon the city. Section 72 of the charter requires the board to fix the proportionable amount of state and county charges to be paid by the city, a certificate of which is to be delivered by the clerk of! the board to the clerk of the city, and it is then made the duty of the common council to raise the amount by tax upon (sec. 73)the warrant of the city clerk. The board of supervisors, in-December, 1884, included in the schedule of taxes to be raised by the city its share of the expense of the equalization litigation. This was, we think, proper. The expenses were, as has been stated, in the first instance a county charge, but ultimately, as* the event determined, to be paid by the city. The common council provided for the collection of the other items in the schedule, but omitted to take any action to levy the item in question. The mandamus proceeding was then instituted. It.. is now said that there was no refusal to collect this item The* omission to perform a plain duty is equivalent to a refusal, and. one of. the affidavits presented by the defendant in the mandamus proceeding sets forth the reasons “ why the defendant. will not raise the money,” &c. We think the direction in the act of 1873, that the costs and expenses shall be audited by the board of supervisors and “ levied upon the taxable property in said town, city or ward,” is to be carried out by causing the same to be levied in the usual way provided for levying and collecting taxes in the city.

The order should be affirmed.

All concur.  