
    The People of the State of New York ex rel. Thomas J. Acheson, Relator, v. Henry Bullard and Others, Individually and as Members of the Town Board of the Town of Philadelphia, Jefferson County, N. Y., Respondents.
    Fourth Department,
    July 11, 1911.
    Town — compensation of supervisor — percentage on sum paid-out — certiorari — return not controverting petition — when town board will be required to audit claim.
    Under section 178 of the Town Law, as amended,, the right of a supervisor to his statutory fees of one per centum on all moneys paid out by him as supervisor is as absolute as'the right of a salaried official to his salary, the difference being that his compensation instead of being a fixed sum is uncertain.
    The statements in a'.petition of a supervisor for a writ.of certiorari directed to the town board, requiring them to certify and return their proceedings in refusing to allow his claims for percentages on moneys paid out must be taken to be true where they are not controverted in the return to the writ.
    Thus, where he alleges that he had paid out certain sums, that fact must be deemed to be established where the return merely denies that the town is indebted to the relator in the amount set forth in the writ, or in any other amount, such reply in no sense denying the facts alleged in the petition.
    A town board will be required to audit the claims of a supervisor for his . statutory percentage on moneys paid out, where he alleges in his petition for a writ of certiorari that he has paid the amounts upon which percentages are claimed, where the return, while not specifically denying that the payments were made, merely alleges that the supervisor made fraudulent charges against the town, that he converted money to his own use, that he did not keep accurate and honest accounts, etc., and sets out specific instances of dereliction. This because, although such charges may furnish ground for removing the supervisor.from office, or may be a basis for a civil or criminal action against him, he is.entitled to . his day in court. The town board has no power to pass upon his guilt or innocence, but must award him the emoluments legally affixed to his office.
    McLennan, P. J., dissented,
    Certiorari issued out of the Supreme Court, and attested on the 4th day of February, 1911, directed to Henry Bullard and others, individually and as members of the town board of the town of ■Philadelphia, N. Y., directing them to certify and return to the office of the clerk of the county of Jefferson all and singular their proceedings had in refusing td allow certain claims of the relator against the town.
    
      Purcell, Cullen & Purcell [Henry Purcell, Jr., of counsel], for the relator.
    
      J. Frank La Rue [George W. Reeves, of counsel], for the respondents.
   Robson, J.:

The relator, Thomas J. Acheson, was the supervisor of the . town .of Philadelphia continuously from the year 1899 down to and including the 10th day of January, 1911, the date of presentation of his petition for the writ! In November, 1910, he presented to the "town board for audit three verified claims for his fees for paying out and disbursing as such supervisor moneys of the town. One of these claims was for fees for receiving and disbursing the moneys in payment of the schedule of town accounts for the years 1905 to 1908, inclusive, in which the amount received and disbursed for each year was separately stated with the amount of fees' claimed for each year, the aggregate of Which was $50.81. Another was for fees for receiving and disbursing during the period from the year 1907 to and including March 23, 1910, the sum of $26,265.66, being the town hall fund. The amount of this claim was $262.65.-The third claim was for fees for receiving and paying out the railroad fund belonging to said town, amounting to $2,100 for each of the years 1905 to 1908, inclusive. The amount of this claim as presented was $84. This latter claim it is conceded by the relator was erroneous and excessive in that the amount of this fund paid out by him in the year 1907 was $1,450 instead of $2,100. This error in the claim is set forth in his petition; and he therein states that this claim should have been allowed at $77.50 instead of $84, the amount claimed.

Relator’s claim to these fees is made under subdivision 3 of section 178 of the Town Law (Gen. Laws, chap. 20 [Laws of 1890, chap. 569], as amd. by Laws of 1904, chap 546, and Laws of 1905, chap. 642). Prior to the amendment of this section in 1904, which added subdivision 3 thereto, a supervisor was not entitled to any compensation for paying out town moneys, except the per diem allowance theretofore provided. (People ex rel. Keeffe v. Town Auditors, 24 App. Div. 579; affd., 156 N. Y. 689.) By this subdivision it is provided that a supervisor is entitled to be allowed and paid, in the same manner as 'other town charges are allowed and paid, a fee of one per centum on all moneys paid out by him as such supervisor, including moneys paid out for purposes particularly specified in the act, and excepting moneys expended under the Highway Law and moneys delivered to his successor in office. As these fees are to- be allowed and paid in the same way as other town charges are allowed' and paid, a claim for such fees must be presented to the auditing board and the claim audited. But the right of a supervisor to these' fees is as absolute as the right of á salaried official to his salary. The difference is only that the-compensation for services by salary would be “a fixed and certain sum, and that by fees uncertain.” (MacVeany.v. Mayor, etc., 80 N. Y. 185, 193; Nichols v. MacLean, 101 id. 526, 533.) As was said in People ex rel. Ryan v. Green (5 Daly, 254, 269): “ The fees or salary of office are ‘ quicquid honorarium,’ and accrue from mere possession of the office.” If, therefore, the -relator as supervisor properly paid out for the town the moneys set out in his various claims he became entitled to a fee of one per centum thereon, his right thereto accruing as an emolument of his office. In .petition he alleges that he did actually pay out for the town the sums upon which his claims for fees are based, except in-regard to the railroad fund to which I have already referred. Unless this statement in' the petition be controverted in the return to the writ it must be taken as true. (People ex rel. Village of Brockport v. Sutphin, 166 N. Y. 163.) In their return respondents do “ deny that the said Town of Philadelphia is indebted to the relator in the amounts set forth in said writ, or in any amount.” This statement is in no sense a denial of the fact alleged in the petition that the relator had paid out for the town the several sums therein stated. Besides this, the only denial that relator has paid out for the town the sums he has alleged in the petition is. the statement that in the town schedule account he has included as paid put by him for those years sums aggregating $52.50, which it is alleged he fraudu-' lently charged as payments in behalf of the town, whereas in fact he converted the several amounts to his own use. It follows that the amounts ■ which it must be assumed respondents admit were paid out by relator are as follows; For town schedule accounts, $5,049.51; for town hall fund, $26,265.66; for railroad fund, $1,150. .Upon these sums he is, therefore, presumptively entitled to his fee of one per centum.

The respondents further state in their return that in auditing and disallowing relator’s claims they believed that he had already taken his fees from town funds in his hands and charged the same to the town. This is stated only as a belief and not as a conclusion of fact. Clearly the facts alleged in the return upon which this belief is stated to have been based are insufficient to support a finding or conclusion that he had so taken his fees. They furnish food for suspicion .and conjecture, but were apparently not persuasive enough to lead even the town board farther than a belief that such was the fact. Further facts with knowledge of which respondents allege they acted in disallowing the claims are that they had ascertained through the medium of an accountant’s examination of the books kept by relator as supervisor that he had received certain sums of town moneys for which he .had failed to account, and that he had charged the town with various sums as paid by him on fictitious or exaggerated claims. Specific statements of these items for which he failed to account, and of the overcharges, are set forth in the return; all of these sums he is alleged to have converted to his own use. It is further charged that he did not keep accurate and honest' books and did not make honest accounts to the town board. This allegation is specialized by statements of specific instances of dereliction. Taking these charges as true, no legal ground for disallowing his claim for fees is shown. As was said by this court in People ex rel. Hamm v. Town Auditors (43 App. Div. 22, 25): “If the relator is charged with dereliction of duty or with misappropriation of the public fund the town board cannot adjudge him guilty. Its duties are limited to the auditing of the claims presented to it. It is neither a court to inquire into the general management of affairs intrusted to the town officers, nor do its members possess the functions of a jury to pass upon the guilt or innocence of the officials of the town. Its investigation is ex parte. 'With a serious charge, inculpating the relator as a public official he is certainly entitled to be heard in court and to he confronted with the witnesses against him.” These charges, if sustained before a competent tribunal, might furnish grounds ’for his removal from office, and would be a basis for either a-civil or a criminal action against him. But, so long as he is the supervisor of the town of Philadelphia he' is ex virtute officii entitled to the emoluments legally affixed to that office. (People ex rel. Leitner v. Sipple, 109 App. Div. 788.)

The determination of the town board of audit should, therefore be annulled, with fifty dollars costs and disbursements, and proceedings remitted to the board of audit to the end that relator’s claims may be .audited and allowed in accordance with this opinion.

All concurred, except McLennan, P. J., who dissented upon the ground that the relator is not entitled to an audit because he presented a false account to the town, appropriated to his own use certain of its funds and mingled its funds with his own.

Writ sustained, determination of the town board of audit annulled, with fifty dollars costs and disbursements to relator, and proceedings remitted to the board of audit to the end that the relator’s claims may be audited and allowed in accordance with the opinion.  