
    People ex rel. Anibal et al., Resp’ts, v. Board of Supervisors of Fulton County, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 6, 1889.)
    
    1. Taxation—Appeal—Costs and expenses—Attobney’s ebbs.
    Laws 1884, chapter 485, amending Laws 1859, chapter 312, section 13, providing that on an appeal from a decision of the county board of supervisors, the state assessors shall certify the reasonable costs and expenses arising therefrom, does not deprive an attorney employed by the board to resist the appeal from his right to recover under his contract.
    ■2. Mandamus—To enboece contbact—When allegations op petition not PUT IN ISSUE.
    On a proceeding by mandamus to enforce a contract for legal services, the defendant’s answering affidavits contained no denial of the facts alleged in the petition, but only stated the affiant’s ignorance of the contract as alleged. Held, that the allegations of the petition were not put in issue.
    3. Same—When peopeb bemedy to compel audit op claim.
    Where the board of supervisors refuse to audit on the ground of want of authority, there being no dispute as to the facts, mandamus will lie to compel their action.
    
      John M. Carroll, for app’lt; Robert P. Aníbal, for resp’t.
   Learned, P. J.

This is an appeal from an order granting a peremptory mandamus.

The relators in their affidavits state positively that in December, 1886, they made a contract with the board of supervisors through a committee of that body to do certain legal services at a price not less than §1,200, and disbursements, and that they did those services. They produced a report of the committee made to the board December 21, 1886, stating this contract and an acceptance of the same.

The defendants make an answer denying this on information and belief, verified by the present chairman. There are affidavits also produced by the defendants, but they contain no denial of the facts alleged. They only state the affiant’s ignorance of such alleged contract. We think, therefore, the learned justice properly held that the facts alleged by the relators had not been put in issue by the defendants. People ex rel. Kelly v. Common Council, 77 N. Y., 503, at 511. This rule is not in conflict with the rule that on a granting a peremptory mandamus, the facts stated in defendants’ affidavits must be taken as true. People v. Richards, 99 N. Y., 620. The difficulty is that defendants do not state facts, nor deny the relator’s allegations. ■

We have then the employment of the relators by the board at a specific amount, and the performance by the relators of the services.

When the relatoras bill was presented to the board in December, 1887, it was disallowed in the language of the resolution “ on the ground that this board has no authority to, audit the bill for any different amount than is certified by the state assessors^ and for no other reason or on no other „ grounds.” Hence, all question as to the alleged contract, etc., is eliminated, and the question is simply one as to the power of the board.

The matter in which the relator was employed was an appeal by the town of Perth to the state assessors, from the equalization of the board of supervisors. Now, it is true that on such appeal the parties really interested to oppose the appellant are'- the other towns of the county. But it Will be seen by section 13, chapter 312, Laws 1859, that the notice is to be served on the chairman and. clerk of the board. So that the board is made the legal respondent and not the remaining towns. Therefore, it was said in People ex rel. v. Kingston (101 N. Y., 82, at page 96), that the board was the party respondent in the appeal. It was its duty, as the representative of the county, to defend its equalization if it believed it to be just, and as incident to the duty, it could incur the necessary expenses in defending its action.

We, therefore, see no reason to doubt that the action of the board in employing the relators was lawful. Probably, in the view of the legislature, the board would eventually place the burden of expense where it belonged.

But the defendants urge that this right of the board to contract for services of counsel in such matters is controlled by the provisions of chapter 435, Laws of 1884, amending section 13 of chapter 312, Laws 1859, as amended, etc. This section is, ‘ ‘ whenever any appeal so- made shall be sustained, the state assessors shall certify the reasonable costs and expenses arising therefrom and connected therewith on the part of the appellant and respondent, and such amounts so certified shall be audited by the board of supervisors and levied and collected, etc.”

In accordance with this law the relators presented their bill to the state assessors at $1,400. It was allowed at $500; and at that amount was included in the respondent’s costs and expenses of $3,312.35, certified, by the state assessors. In accordance therewith, • the board of supervisors allowed the relator’s bill at $500; and this present-proceeding is to enforce the residue of the contract price.

This presents the real question in this case: Does the statute authorizing the state assessors to certify the costs and expenses deprive the relators of their rights under their contract; that is, does the statute render the contract void?

To enable us to test the question we may suppose that the relators had contracted with the board to do all these services for $100; could they have compelled the board to pay any more? ~

Now, if the defendant’s contention is correct, then whenever such an appeal is taken and the board of supervisors desires to oppose the appellant, the' only arrangement it can make with counsel is that they shall receive whatever the state assessors will certify. This is a contract which few would be willing to accept. The state assessors may know what labor was performed in their presente, but they have no opportunity of knowing what was done in the preparation of the case outside.

Further, the statute provides that when the appeal is not sustained the assessors shall certify the reasonable costs and expenses on the part of appellant and respondent and these shall be a charge on the appellant to be levied by the board.

It seems to us, therefore, that the amounts thus to be certified are somewhat analogous to taxable costs. As taxable costs do not determine the amount owing by client to counsel, so we think that authority to certify these costs given to the state assessors does not prevent the board of supervisors from contracting with their, counsel as to compensation, and that such contract is binding.

Such is the fair inference, also, for the language of the court in the case last cited: “The board of supervisors

must, of necessity, incur the expenses in the first instance, on its own credit.” And a board will have very poor credit if, when it contracts to pay $1,200, this is to be understood to mean “or as much less as the state assessors may certify.” •

The defendants insist that mandamus will not lie because their action was judicial. They did not audit. They refused to audit, believing themselves to have no power. There is no dispute about facts. If the board had said, we never made such a contract, and the relator’s services are not worth that sum, the case would have been different. But they very fairly and frankly stated their legal position, by the resolution which they adopted. We judge from . that resolution that they appreciated the justice of the relator’s claim, but thought that they were forbidden to allow it.

We think that the order should be affirmed, with fifty dollars costs and disbursements.

Lardor and Irgalls, JJ., concur.  