
    The People of the State of New York ex rel. Michael H. McGovern, Relator, v. The Board of Trustees of the Village of Penn Yan, Respondent.
    
      Village of Penn Tan — a claim by a health officer made not as such, but as a physician, is a claim against the milage to be audited, by the trustees—peremptory mandamus — answering affidavits to be taken as true.
    
    Upon an appeal by the board of trustees of the village of Penn Yan, incorporated under chapter 119 of the Laws of 1889, from an order directing that a peremptory writ of mandamus issue requiring the board to pay the claim of the relator Michael McGovern, it appeared that the village had a.board of health appointed under the Public Health Law (Chap. 661 of 1898), which, on the 24th day of March, 1894, appointed the relator health officer of the village for the then ensuing year, and fixed his compensation at one dollar for an ordinary visit and not to exceed four dollars in cases of small pox, diphtheria and scarlet fever; that about three months later small pox broke out in the village, and that, as the relator alleged in his affidavit in this proceeding, he treated the case under the employment and by the direction of the village board of health.
    Some seven weeks later the relator presented a bill to the village for $1,075, in which he described himself as physician and surgeon, and claimed for services as health officer in the small pox cases twenty-five dollars a day. This bill was ■ never presented to the board of health, but it was allowed by the trustees of the village at §600. Subsequently, the relator presented a bill to the board of health for §1,075, which passed a resolution that the bill be paid, whereupon the village raised the sum of §600, which was tendered to and refused by the relator, who, about two months later, presented to the village" a bill for his services as a physician upoii the employment of the board of health of said village in the same cases for the sum of §1,075. The trustees of the village having taken no action thereon the relator obtained a writ of peremptory mandamus which directed the trustees to pay the relator the full amount.
    
      Held, that, as the relator had elected to take a peremptory mandamus, all the statements of fact contained in the answering affidavits of the defendants must be taken to be true, and, among other things, the allegation that the relator’s services were not worth more than §600;
    That the bill in question was made out in a form which indicated that it was an independent claim for the services of the relator as a physician,, and not for his compensation as health officer of the village;
    That thé board of health of the village had no power to fix the compensation of any person for services to be rendered except that of the health officer;
    That under the provisions of the village charter and of the Public Health Law the board of trustees had power to audit and allow all claims against the village incurred by the board of health," except the compensation of the health officer as such;
    That as the relator did not claim as health officer, the claim was to be viewed as-an ordinary claim against the village, and, as it had been audited at what the trustees deemed a reasonable amount, a peremptory writ of mandamus should not have been issued compelling the payment of the claim at the amount at which it had been made out by the relator.
    Appeal by the respondent, The 'Board of Trustees of the Village of Penn Yan, from an order of the Supreme Court, made at the Monroe Special Term and entered in the- office of' the cleric of the county of Yates on the 2d day of December, 1895, directing that a peremptory writ of mandamus issue requiring the respondent to pay the claim of the relator.
    The village of Penn Yan was incorporated pursuant to chapter 119 of the Laws of 1889. In 1894 there was a board of health of said village appointed pursuant to chapter 661 of the Laws of 1893, which, on the 24th of March, 1894, appointed the relator health officer for the then ensuing year; and at a meeting .of the board held April 26, 1894, the relator being present, “ It was moved and carried, the compensation' of health officer be one (1.00) dollar per visit for ordinary cases, but in cases of small pox, diphtheria and scarlet fever it is not to exceed four (4.00) dollars.” June 17,1894, small pox broke out in a dwelling in said village occupied by four families.
    The relator avers in his affidavit “ that under "the employment and by the direction of the board of health of said village of Penn Tan deponent treated the case as a physician and had the sole and exclusive charge of the same.”
    August 7, 1894, the relator made out the following bill against the village:
    “ Penn Tan, N. T., Aug. 7, 1894.
    “ Village of Penn Tan,
    “ To M. H. McGovern, Dr.
    
    
      “ Physician and Surgeon.
    
      “ For services as health officer.
    " Treatment of small pox patients, moving and burying the same, from June 17th until July 29, ins., at $25 per day, 43 days............................................ $1,075.”
    The relator meeting the president and. secretary of the board of health procured the following indorsement to be entered on his bill: “ The foregoing bill is correct. and ' allowed. Frank Dains, Pres. Board of Health. O. N. McAdams, Sec’y.” The bill, however, was never presented to or audited by the board of health. On the same day, August 7, 1894, the bill was presented to the board for trustees of the village and was filed with its clerk. After hearing the relator the trustees, November 9, 1894, audited and allowed the bill at $600. November 15, 1894, the relator presented a bill for $1,075 to the board of health, which passed the following resolution: It was moved and carried that the bill be paid.” Thereafter the village raised by tax the sum of $600, which was tendered to and refused by the relator. On January 15, 1895, the relator verified the following bill, and on the eighteenth of that month inclosed it in a letter to the trustees of the village, stating that he wished to withdraw his prior bill and present the following bill instead:
    “Village of Penn Tan
    
      To M. H. McGovern, Dr.
    
    “ 1894. To services as a physician, upon the employment of the Board of Health of said village, in the treatment and care of small pox patients in said village, from and including June 17th, to and including July 29th, 1894, at the price of $25 per day ....................■................... $1,075
    “ Tates County, ss. :
    
    “ M. H. McGovern, being duly sworn, says that he is a physician and surgeon residing in the village of Penn Tan, in said county ; that the services above mentioned have been rendered by this deponent, as above set forth, upon the employment and under the direction of the board of health of said village; that-the account as above rendered is correct, and that no part thereof has been paid. That at a meeting of the board of health of said village of Penn Tan, duly had after the rendition of said services, the amount of the claim of deponent as herein set forth was_ allowed and fixed by the said board of health as the amount of the compensation which should be paid to this deponent ■ for his services in attending the Small pox • patients and cases in said'village, under said employment of said board of health.
    “M. H. HcGOVERH.
    “ Sworn to before me, this lath day of January, 1895.
    “ Benjamin L. Hoyt,
    
      “ Nota/ry Public.”
    
    Ho action being taken by the trustees on this second bill, the relator began these proceedings on the, 10th of April, 1895, and a peremptory writ of mandamus was issued directing the trustees to pay to the relator the full amount of his bill.
    
      Calvin J. JLuson, for the appellant.
    
      M. A. Leary, for the respondent.
   Follett, J.:

The relator having elected to take a peremptory instead of an alternative Writ of mandamus, all the statements of fact contained in the defendant’s opposing affidavits must be taken as true; and among other facts it is stated that the relator’s services were not - reasonably worth more than the sum of $600 allowed by the trustees. It is provided by section 20 of chapter 661 of the Laws of 1893 (the Public Health Law) that every village board of health shall have power to appoint a competent physician, not a member of the board, to be the health officer of the Village.

By section 21 it is provided : Every such local board shall prescribe the -duties and' powers of the local health officer, who shall be its chief executive officer, and direct him in the performance of his duties and fix his compensation.” Shortly after the appointment of the relator to the position of health officer his compensation for attendance upon cases of small pox was fixed by the board at a meeting at which he was present. The bill which he presents for his services is not made out pursuant to the rate of compensation then fixed. But he makes an independent claim for his services, not as health officer, but as a physician for the services which he rendered in this case. The board of health is given no power to fix the compensation of any person for services rendered,' except the services of its health officer; and when the relator entered upon the discharge of duties other than those imposed upon him as health officer, his compensation is to be fixed and allowed under other sections of the statute.

By section 1 of title 5 of chapter 119 of the Laws of 1889 (the charter of the village of Penn Tan) it is provided : “ The trustees shall have the auditing of all accounts and claims against the village, and no account or claim shall be paid unless allowed by them or after judgment obtained thereon. * * * The claimant may be examined on oath by the trustees in relation to said claim, and the items thereof, * * * Nothing herein shall be construed as preventing the trustees from disallowing any account or claim in whole or in part, when so made out and verified, nor from requiring other or further evidence of the correctness and reasonableness thereof.”

Section 30 of article 2 of the Public Health Law (Chap. 661, Laws 1893) provides: “All expenses incurred by any local board of health in the performance of the duties imposed upon it, or its members, by law, shall be a charge upon the municipality, and shall be audited, levied, collected and paid in the same manner as the other charges of or upon the municipality are audited, levied, collected and paid.”

By the sections above quoted the power is conferred upon the board of trustees of the village of Penn Tan to audit and allow all claims against the village incurred by the board of health, except the compensation of the health officer as such. The relator in this case makes no claim in the bill presented, and which he seeks to have the defendants compulsively compelled to pay, for his services as health officer. His claim is that he acted solely in the capacity of a physician. Nowhere in his papers does he assert a claim in his official capacity. That he has elected to make a distinction between his claim .as a physician and as health officer is further emphasized by the fact that he presentéd a bill for services from' April' 1,, 1894, to March 20, 1895, as health officer, made but in items pursuant to. the rate of compensation fixed by the board of health; The povyer of the board of trustees to audit the claim of the relator'confers authority upon them to determine whether the claim was just and legal in whole or in part. (People ex rel. Dinsmore v. Gilroy, 82 Hun, 500; affd.,145 N. Y. 596.)

We are of opinion that the board of trustees of the village of Penn Tan was solely authorized to audit the-claim of the relator, and that, they' having done so, and fixed an amount which they deemed to be reasonable, a peremptory writ of mandamus ought not to havé been granted compelling them to pay the claim as made out by the relator.

The order should be reversed,, with hosts.

All concurred.

•Order, reversed, with costs and disbursements, and writ dismissed, with fifty dollars costs in the court below.  