
    The People ex rel. Abel S. Myers, App’lt, v. John Barnes et al., as The Board of Town Auditors of the Town of Highland, Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 4, 1889.)
    
    Municipal corporations—Liabilility of for certain payments— Board of town auditors—Power of—1 R. S., 357; 2 lb. (8th ed.) 913—Code Civ. Pro. , § 1931.
    Under the statute (1 R. S., 357; 2 lb. [8th ed.], 913), and section 1931 of the Code Civil Procedure, an absolute liability is not imposed upon towns for all judgments recovered against a sole commissioner of highways in an action prosecuted in his official name. The board of town auditors have the power to examine and determine whether the action is one which the commissioner had the right to prosecute in his official character, and whether it was carried on in good or bad faith, and it is its duty to examine and allow, or disallow, in whole or in part, a claim presented to it for money expended in litigation. In determining whether the town is liable for claims of this character, the board acts judicially, and such action cannot be revived or controlled by courts through the writ of mandmnus.
    
    
      T. B. Bush, for app’lt; Lewis E. Carr, for resp’ts.
    
      
       Affirming 8 N. Y. State Rep., 531; see former appeal, 22 N. Y. State Rep., 164.
    
   Per Curiam.

The relator was the sole commissioner of highways of the town of Highland, from the annual town meeting in March, 1881, to the annual town meeting, in March, 1883.

On the Tuesday preceding the annual town meeting, boards of town auditors are required to audit the accounts of “all town officers who receive or disburse any moneys belonging to their respective towns.” 2 R. S. (8th ed.), 908). On the last Thursday, preceding the annual meeting of the board of supervisors, boards of town auditors are required to meet and audit “the accounts of all charges and claims payable by their respective towns,” and certify all claims allowed to the board of supervisors, which body is required to levy the sums certified upon the taxable property of the town. Ch. 305, Laws 1840; 2 R. S. (8th ed.), 907.

' On the last Tuesday preceding the town meeting of 1882, the board of auditors met, examined the accounts of the relator as commissioner, and certified in due form that $128.17 was due him from the town. Why this claim was not certified to the board of supervisors when they met, oh the last Thursday preceding the annual meeting of the board of supervisors, in 1882, does not appear.

When the annual town meeting for 1882 was held there were thirty-three road districts in the town. A commissioner of highways is required (chap. 503, Laws 1880; 2 R. S. [8th ed.], 1354), within one week after the annual town meeting, to appoint as many overseers of highways as there are road districts in the town, which duty the relator duly performed March 24, 1882.

Charles Hickok was appointed overseer of district No. 3. On the same day the relator duly assessed the highway labor, made out and certified the lists, or warrants, for the several road districts, which were delivered to the several overseers, as prescribed by the statute. 2 R. S. (8th ed.), 1358, §§ 24, 25.

May 1, 1882, the overseers of districts Nos. 12, 18 and 27 resigned, and their resignations were accepted by the re Iator. May 3, 1882, he made an order by which he assumed to abolish districts Nos. 12, 18 and 27, and added the territory embraced within them'to district No. 3. The assessment lists, or road warrants, which had been issued to the overseers of districts Nos. 12, 18 and 27, were returned to the relator, who delivered them to Hickok, the overseer of No. 3, and directed him to execute them. Subsequently Hickok refused to obey the commands of the relator and enforce the assessments against persons and property in districts Nos. 12, 18 and 27, alleging, as his justification, that the attempted abolition of those districts, and the addition of the territory within them to his district was in violation of the statute authorizing a sole commissioner of highways to divide his town into as many road districts as he shall think "convenient, by a written order made at least ten days before the annual town meeting. Subd. 5, § 1, 1 R. S., 501; 2 id. (8th ed.), 1347.

June 28, 1882, the relator began an action against Hickok in a justice’s court in the town of Highland, alleging, as a cause of action, that Hickok, by refusing to obey the commands of the relator, and enforce the assessments, had incurred the penalties imposed by statute upon overseers who unlawfully refuse to perform their duties. 1 R. S., 504, § 16; 2 id. (8th ed.), 1350.

The action was twice tried, resulting in disagreements of the juries, and was discontinued. A second action was begun in a justice’s court of the town of Bethel, which was tried and resulted, in August, 1882, in a judgment for the defendant of no cause of action, with costs. The relator appealed to the county court, demanding a retrial, which was had, resulting, April 28, 1883, in a judgment of no cause of action, with $76.10 costs, which the relator paid, November 3, 1883. Assuming that the litigation was proper, the relator necessarily expended $80.15 in conducting it.

On the last Tuesday (February 27), preceding the annual town meeting of 1883, the relator presented his accounts for moneys received and disbursed as commissioner for the preceding year, to the board of town auditors (but the claims now sought to be recovered were not included therein), and thereupon his account was audited, and it was found that he had received $134.37 more than he had paid out; which sum was adjudged to be due from him to the town. In July, 1883, the supervisor of the town brought an action in a justice’s court against the relator and his sureties upon his official bond for the recovery of this sum; which action the relator settled July 30, 1883, by paying the amount claimed.

On the last Tuesday (November 8, 1883), preceding the annual meeting of the board of supervisors in 1883, the relator presented to the board of town auditors his claim audited in 1882 for $128.17; his claim for the judgment paid, November 3, 1883, $76.10; amount expended in the litigation against Hiekok, $80.15, and demanded that the accounts, with interest,, should be allowed him and certified to the board of supervisors; but the claims were all rejected. The relator re-presented the claims to the town board on the last .Thursday preceding the annual meeting of the board of supervisors in 1885, and they were again rejected. Thereupon, November 30, 1885, the relator obtained an alternative writ of mandamus requiring the board of auditors to certify to the board of supervisors the audit of 1882 ($128.17), and the judgment for $76.10, costs, and to audit the claim for $80.15 or show cause, etc. An issue of fact was joined which was tried at circuit, and at the close of the evidence the writ was dismissed and the exceptions taken were ordered heard at general term in the first instance.

Upon a case made, the general term sustained the ruling at circuit, and ordered a judgment for the defendant, with costs, which was entered, and from which the relator appealed.

The appeal must be determined upon the assumption that every disputed question of fact would have been found in favor of the relator.

The $128.27 was expended by the relator, without first obtaining the consent of the board of town auditors, in the reparation of bridges damaged after the annual town meeting of 1881. The defendants assert that such expenditure being in violation of the statute (chap. 103, Laws 1858; 2 R. S. [8th ed.], 1353), the relator is not entitled to recover the sum of the town. The relator, however, insists that the auditing of the bill by the board was a legal ratification of his act, and made his claim upon the town as valid as though the expenditure had been first duly authorized, as provided by the statute cited, and afterwards duly audited. If the relator’s position be correct, the fact remains that the board had the power to examine this claim for these unauthorized expenditures, and ■ determine whether they were in fact made; and if so, were they necessary or reasonable; and it had the right, acting in good faith, and within legal rules, to reject the whole, or part of the claim, for such reason. The relator also insists that the bill having been once audited, the board had no right to re-audit and reject it. The answer to this is that the relator, by presenting this claim to the board at its subsequent meetings for audit, submitted his rights to it, and he cannot now successfully assert that the board was without power to reexamine, and allow, or disallow, a claim which he submitted for its determination.

Section 8 of title 5 of chapter 11 of part 1 of the Revised Statutes (1 R. S., 357; 2 id. [8th ed.], 913), and section 1931 of the Code of Civil Procedure, do not impose an absolute liability upon towns for all judgments recovered against a sole commissioner of highways in an action prosecuted in his official name. People v. Board of Supervisors of Ulster, 29 Hun, 185; 93 N. Y., 397.

The bo.ard of town auditors had the power to examine and determine whether the action was one which the relator had the right to prosecute in his official character, and whether it was carried on in good or bad faith. The board of town auditors had the power, and it was its duty to examine and allow, or disallow in whole, or in part, the claim for $80.15 expended in the litigation out of which the judgment for costs arose.

In determining whether the town was liable for these claims, the board acted judicially, and such action cannot be reviewed or controlled by courts through the writ of mandamus, which is an appropriate remedy to compel public officers, judicial, as well as ministerial, to act; and when the act is ministerial, the officer may be compelled to perform the act according to law; but officers vested with judi- ' cial power which is to be exercised upon a disputed state of facts, or upon facts from which different inferences may be drawn, cannot be compelled by mandamus to decide in a particular way. If the record before us showed that the claims sought to be recovered were made by statute, or by some well settled rule of law, legal charges against the town, charges which the board was bound to allow in whole, or in part, then this case would have been within the rule laid down in the People v. Supervisors of Delaware, 45 N. Y., 196; People v. Board of Town Auditors of Elmira, 82 id., 80, and kindred cases; but, as we have attempted to show, the relator has failed to establish, by the evidence contained in the record, the absolute liability of the town for the whole, or part of any one of the claims; nor does the evidence present a question of fact which could have been determined so as to establish the liability of. the town.

The motion for a re-argument must be denied.

All concur, except Brown. J., not voting, and Parker, J., not sitting.  