
    The People ex rel. Daniel E. Sutliff, v. The Board of Supervisors of Fulton County.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 6, 1893.)
    
    1. Sufervisoes—Audit of accounts.
    Where a claimant has had notice of the proceedings to audit his claim and an opportunity to examine witnesses and discuss the matter before a committee, the fact that he was not allowed to make an argument before the full board is not a ground for a reversal of its determination; that is a. matter within the discretion of the board.
    2. Same—Evidence.
    Although the court may review the action of the board of supervisor» in extreme cases in improperly receiving or rejecting evidence offered onu the audit of a claim against the county, yet ordinarily an error of the-board or its committee in receiving incompetent evidence will not cause at reversal of its determination.
    8. Same.
    Relator’s bill consisted of over a thousand items, which were summarized under four heads. The board after a hearing before a committee passed a resolution recommended by said committee which simply stated that the bill be audited and allowed at a portion of the amount claimed. Held, that the board failed to discharge its duty in failing to pass upon the items of plaintiff’s claim; that while it might not be necessary to pass on each item separately, yet in some way they should pass on and allow or disallow the items so that it may be known what the determination was as to each item.
    Certiorari to review the proceedings of the board of supervisors in auditing two bills of the relator as late sheriff of the county. '
    
      Smith & Nellis (Andrew J. Nellis and John M. Carroll, of counsel), for relator; N. H. Anibal (J. A. Dennison, of counsel), for resp’t.
   Putnam, J.

This is a certiorari brought to review the proceedings of the board of supervisors of the county of Fulton in auditing two bills of relator’s as late sheriff of said county.

Bill No. 1, a copy "of which is set out in the return consists of 1,287 items, and at the end thereof, is the following re-capitulation :

“ Fulton county,
To Daniel E. Sutliff, Dr.
For board of prisoners per schedule No. 1, 12,490
days, 1,784 2-7 weeks at $3.50 per week.....____ $6,245 00
For tub.fees, emptying tubs for prisoners, per schedule
No. 1, 1,784 2-7 weeks at 75 cents per week...... $1,338 21
For washing for prisoners, per schedule No. 1,1,7342-7
weeks at 75 cents per week.................... 1,338 21
For 2,577 turnkey’s fees, per schedule No. 1, at 37 1-2
cents......................................... 966 37
Total amount of schedule No. 1........ .......... $9,887 79

Bill No. 2 contains charges for taking prisoners to court, arrest, services, expenses, etc., and has at the end thereof the following recapitulation:

“Fulton county,
To Daniel E. Sutliff, Dr.
For taking prisoners to court, schedule No. 2....... $ 896
For criminal arrests, schedule No. 2............... ' 75 65
For services, expenses, etc., schedule No. 2......... 846 58
Total......................................... $43119

Both bills were promptly verified and were duly presented to the supervisors for audit. The board appointed a committee before whom the parties and their witnesses appeared and a large amount of testimony was taken. At the end of the hearing the committee reported, recommending the passage of the following resolution : “ Resolved. That the bill or claim of Daniel E. Sutliff, as sheriff of Fulton county, from November 1, 1888, to September 1, 1889, for $9,887.79, be audited and allowed at $1,809.02.”

“Resolved. That the bill of Daniel E. Sutliff as sheriff of Fulton county, called schedule ¡No. 2, for $431.19, be audited and allowed at $301.06.” The report was adopted by the board.

It is urged on the part of appellant that the supervisors erred in receiving incompetent evidence, in refusing to strike out evidence taken in the absence of relator and his counsel in refusing to allow relator to address the board, in allowing testimony taken before the committee to be read to the board in the absence of some of its members and in other regards.

We are of opinion, however, that no such error was committed in the regard above mentioned as requires a reversal of the determination of the supervisors.

On the bills being presented the board appointed a committee. Relator seems to have had a reasonable notice of the proceedings and have had an opportunity, with his counsel, to examine and cross-examine witnesses, and at the end of the examination stated that he had no other witnesses to examine. Counsel for relator was allowed to discuss the case before the committee at length. Whether he should be allowed to make an argument before the full board, or whether the stenographer’s minutes taken by the ■committee should be written out for the use of the board or not, was a matter within the discretion of the supervisors. And if some of the members went out from time to time during the reading of the testimony taken before the committee, which reading lasted seven days, we are of opinion that this fact would not compel us to set aside the finding. See People ex rel. Gilhooley vs. Commissioners, 23 Hun, 351.

Although the court may review the action of supervisors in extreme cases in improperly receiving or rejecting evidence offered on the audit of a claim against the county, People ex rel. Schabacker vs. State Assessors,, 47 Hun, 450; 14 St. Rep., 309; yet, ordinarily an error of the board of supervisors or its committee in receiving incompetent evidence will not cause a reversal of its determination. People ex rel. Board of Supervisors of Chenango Co. v. Board of State Assessors, 22 W. Dig., 453; People ex rel. Mizner v. Hair, 29 Hun, 125; People ex rel. Walkill Valley R. R. Co. v. Keator, 17 Abb. N. C., 369.

In the last casé the learned judge, delivering the opinion of the court, says: “¡Nowthis is a special proceeding, a proceeding authorized to be taken under a special statute ; it is not an action or proceeding to be conducted according to the strict rules of the common law, either in the admission of evidence or otherwise. It is like the case of People ex rel. Flannagan v. Police Commissioners of New York, 93 N. Y., 97. As there said, in regard to that case, having in view the special powers conferred and the purpose to be attained by the proceeding, it is not to be limited or trammeled by an application of strict legal rules, which prevail on trials and proceedings in courts of law.” Doctrines stated by the court in that case are applicable to this case. See, also, People ex rel. McCarthy v. Board of Com'rs of Police, 98 N. Y., 332-334.

We are, hence, of opinion that none of the objections to the proceedings of the supervisors above considered should cause a reversal of the decision made.

It is also urged by the appellant that, upon the evidence given in the case, relator was clearly entitled to the allowance of his bill or the greater part thereof, and that defendants had no right to reduce the same as they did. It is true that under the provisions of sub-division five, § 2140, Civil Code, the court can examine the evidence and set aside the determination of the board in the same cases that a court could set aside the verdict of a jury as against the preponderance of evidence. People, ex rel., McAleer v. French, 119 N. Y., 502; 30 St. Rep., 72.

But in this case it would be somewhat embarrassing for the court to undertake the examination of the very voluminous evidence given with the view of deciding which items of the plaintiff’s bill are supported by the testimony for the reason that it does not appear from the return of the supervisors or by their decision, what items of plaintiff’s claim were allowed and which were disallowed. The return shows a very long account presented by the relator, consisting of two claims, one of $9,887.79 and the other of $431.19. The first bill was allowed at the sum of $1,809.02 and the other at $301.06. It is impossible to say from the return of the board what items were allowed and what were disallowed.

A very large amount of testimony has been taken in this case and the parties have necessarily incurred great expense and we should much prefer to reach a conclusion sustaining the findings of the supervisors. But we think that they failed to discharge their duty in failing to pass upon the items of plaintiff’s claim. They failed to audit the bill properly and hence, within the provisions of sub-division 5, § 2140, Civil Code, their determination should be set aside. That the allowance by the supervisors of a gross sum on relator’s bill instead of passing on the items thereof was not a proper audit is well settled. In People, ex rel. Thurston, v. Board of Auditors, 20 Hun, 150, the question was passed upon by this general term and in the opinion the following language is used: “But, in order to a proper and legal audit of the account, the board must examine the bill in detail and allow or disallow the various items. It would be no proper or just audit of an account made up of numerous items to allow a gross sum instead of considering and passing upon the items.” This was held in the People, ex rel. Johnson, v. The Board of Supervisors of Delaware Co., 45 N. Y., 196. “* * * This precise question was decided in the case last cited. A legal and proper auditing of an account requires an examination of the items of which it is composed, and the allowance or disallowance of them, accordingly as they shall be found correctly or incorrectly charged both in fact and law.”

The above case was affirmed by the court of Appeals, 82 N. Y., 80.

The result is that defendants have failed to pass upon plaintiff’s claim. They must pass upon the items and should so discharge their duty in that regard, that the relator will be able to know which items were allowed and which disallowed. It may not be necessary for the hoard in their decision to pass on each item of relator’s bill separately. For instance, if they should disallow “ turnkey’s ” fees and all “ tub ” fees it would be sufficient to so declare without specifying each item. If they should allow the number of weeks board claimed but reduce the price it would be sufficient to merely state the price per week allowed. But in some way the board should pass on and allow or disallow tbe items of relator’s bill, and in such a way that it may be known what the determination in fact was as to each item. This may cause much trouble, but it seems necessary under the statute and decision.

In People ex rel. White v. Supervisors of Clinton County, 48 St. Rep., 8, where relator had charged a large number of days’ board of prisoners at a sum stated we held that one finding of the Supervisors fixing the price of board at sixty cents applied to a large number of items was sufficient, that in fact the supervisors passed on the items of relator’s bill. In this cáse, as above suggested, defendant may be able to pass on many items in the bill in question in one finding, but in any event it must audit the items of the bill.

On such an audit if the relator is dissatisfied, the items allowed and disallowed-being known, the evidence can be examined if necessary to determine whether the finding of the supervisors is supported or unsupported thereby.

The determination of the board of supervisors should be reversed with fifty dollars costs and disbursements to the relator.

Mayham, P. J., concur.

Herrick, J.

It seems to me that many of the items in the relator’s account there is no fee or compensation allowed by law, and that for such he is not entitled to recover under § 3280, Code of Civil Procedure

The board should also determine what the actual expense has been to the relator in providing the prisoners in his case with food pursuant to the statute. See Birdseye Statute, 2301; laws of 1847, chapter 460, title-1, article l,1 § 8.

Determination of board of supervisors reversed, with fifty dollars costs and disbursements to the relator.  