
    John Adam Eppig, as Executor, etc., of Leonhard Eppig, Deceased, Respondent, v. The City of New York, Appellant.
    
      Laying out of a highway in Queem county — suit-against the city of New York by the petitioner therefor who has paid the expenses thereof— cmdit by the comptroller — counsel fees not allowed —pay of the commissioners.
    
    Where the petitioner in a proceeding to lay out a highway in the town oí Jamaica, county of Queens, which is now included in Greater New York, pays the bills of the commissioners appointed in the proceeding, his right of action against the city of New York upon such claim does not accrue until it has been presented for audit to the comptroller of the city of New York and has been acted upon by him.
    The presentation of such claim to the comptroller of the city of New York, not • for audit, but as a statutory preliminary to the bringing of an action, does not justify the maintenance of an action thereon by the petitioner against the city of New York. ,
    
      Semble, that the expression in section 93 of the Highway Law, “ charges of the commissioners, justices, surveyors or other persons or officers employed in •making, the assessment, and for whose services the town shall be liable,” does not include the fees of an attorney or-counsel employed by the. petitioner.
    
      Semble, that each commissioner is entitled to six dollars for each day necessarily employed and to his necessary expenses.
    Appeal by the defendant, The City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 9th day of April, 1900, upon the decision of the court rendered after a trial at the Queens County Trial Term, a jury having been waived by both parties.
    
      William J. Ga/rr \JoTm Whalen and James T. Malone with him on the brief], for the appellant.
    
      Henry A. Monfort, for the respondent.
   Jenks, J.:

In 1897 the plaintiff petitioned the County Court of Queens county, under sections 82 and 83 of the Highway Law (Laws of 1890, chap. 568), for the appointment of commissioners to lay out &■ highway in the town of Jamaica, in the county of Queens. The commissioners Were appointed. They laid out the highway, and their determination was confirmed by the court. The bills of the commissioners, amounting to $219, made out against the town, were paid by the plaintiff, who also paid $350 to counsel who represented him in the proceedings. After January 1, 1898, the plaintiff presented a claim to the comptroller of Few York city for $592, representing these two amounts. The comptroller did not audit the claim, and after thirty days this action was brought. The plaintiff paid these charges while the town of Jamaica existed, without request of the town and without authority from it. Fo provision of the statute required him or authorized him to make such payment, nor was such payment necessary to protect his rights. He was, then, a volunteer. He was not a creditor of the town, but a claimant against it or its successor. . (First Nat. Bank of Ballston Spa v. Board of Supervisors, 106 N. Y. 488 Acer v. Hotchkiss, 97 id. 395; Perkins v. Hall, 105 id. 539.)

When these proceedings were begun section 93 of the Highway Law required that the damages and costs incident thereto should be laid before the board of supervisors for audit preliminary to a levy upon the town. The commissioners reported on December 29,1897.. Chapter 106, Laws of 1898, enacted on March twenty-first, substituted the board of town auditors or the town board for the board of supervisors. On March 28, 1898, the report of the commissioners was confirmed by the County Court. It is not necessary to determine whether the amendment of 1898 applied to these proceedings, for the following reasons: On January 1,-1898, the Greater Hew York charter (Laws of 1897, chap. 378) became a law, and. the new municipal corporation stood in the place of the town. (§ 5, Greater Hew York charter.) If, but for the consolidation of Hew York and Jamaica, this claim for damages and costs must have been presented to the hoard of supervisors for audit, then it should now be presented to the comptroller of the city of Hew York. (People ex rel. Goodwin v. Coler, 48 App. Div. 492.) If, but for consolidation, the board of town auditors or the town board, and not the board of supervisors, was the auditor, then I think that the comptroller of the city of Hew York is now the proper auditor. The laying out of this highway is undoubtedly a public improvement. (Astor v. Mayor, 62 N. Y. 580.) And section 151 of the Greater Hew York charter provides that there shall be an auditing bureau in the department of finance to audit, revise and settle all accounts in which the city is concerned as debtor or creditor, and specifically provides for the audit of ¡accounts arising upon local improvements in the borough of Queens, wherein is situate the territory that made up the former town of Jamaica. It is nob-material,' then, whether the claim could or could not have been presented for audit to the former local officers as here is a successor duly authorized in the premises. The claim actually presented to the comptroller evidently was not for an audit to determine a charge for a local improvement, but was preliminary to this present action, for the allegation of the complaint is that such claim was presented-, and although thirty days have elapsed the said comptroller has neglected or refused to make any adjustment or payment thereof. , And, moreover, the claim served upon the comptroller read in evidence is the “ claim ” of the plaintiff for commissioners’ fees and other expenses paid by him as applicant, accompanied by a letter calling the comptroller’s attention to the fact that the several sums awarded as damages in the determination' remaim, unpaid and are also charges against the city. How, the provision of the Highway Law is that all damages shall be laid bemfe-The board to be audited, with the- charges of the commissioners, justices and other persons and officers employed in makingj-ffie. -assessment, .and for whose services the town shall be liable, and that -the amount shall be levied and collected. Thus the claim filed in any event did not present the damages for audit. I think that the proper procedure is to lay the entire amount of damages and charges before the comptroller for his audit, which can, if necessary, be compelled by mandamus, and that only after he has acted in audit thereon can a right of option, if at all, accrue.

It may be proper to state that I am of opinion that the expression of section 93 of the Highway Law, “ damages * * * and costs against the town as herein provided,” includes the charges of the commissioners, justices, surveyors or other persons or officers employed in making the assessment, for whose services the town shall be liable. This is in the scheme of the procedure in case the petitioner succeeded in obtaining the improvement (Matter of Miller, 9 App. Div. 260); and it is made more plain by the provision in the section that such charges shall be audited with the damages and costs. I think, however, that the said expression “ charges of the commissioners, justices, surveyors or other persons or officers employed in making the assessment, and for whose services the town shall be liable,” does not apply to the fees of the attorney or counsel employed by the petitioner. The petitioner sought the improvement as a person assessable for highway labor. ,He had no authority whatever to incur a liability for the town. He had a mere personal interest that the improvement should be carried out, and that incidentally his proportion of the damages assessed should be as fair and as small as possible. So, if the learned counsel was in fact “ employed ” in making the assessments he took no official part therein, and he was not officially retained therefor by or on behalf of the commission or of the town, but his employment was in the sense that the commissioners, though one of them was a lawyer, availed themselves of his acknowledged skill and learning, which he naturally lent, inasmuch as it was to the interest of his client that the procedure should be regular and without a flaw. But the statute devolved no duty upon him in the premises, and the town had no right to call upon him under • his retainer by the plaintiff. There was no authority in the town to retain him (People ex rel. Bevins v. Supervisors, 82 Hun, 298), and, therefore, he cannot recover on the theory of an implied contract with it or with its officers. And the expression of the statute, “the charges of * * * other persons or officers employed in making the assessment,” is coupled with the words, and for whose services the town shall be liable.” Further, I think that each commissioner was entitled to six dollars for each day necessarily employed, and to his necessary expenses, for the reason that the provisions of section 92 are plain and must control.

■ The judgment-must he reversed.

All concurred, except Sewell, J., taking no part.

■ Judgment reversed and new trial granted, costs to abide the event.  