
    The People of the State of New York ex rel. Alexander R. Rhodes, Respondent, v. George Mole, Sr., and Others, Composing the Board of Audit of the Town of Hempstead, Appellants.
    
      Town auditors—power of the court to compel an audit—what is a refusal to audit.
    
    "While the court has no power to direct, by mandamus, the disposition which town auditors shall make of a claim submitted to them for their action, its authority to compel them to act upon the claim and to pass upon its merits one way or the other is unquestionable.
    Where a board of town auditors, after an examination of a claim submitted to it for audit, rejects the claim, not because of any determination as to the merits thereof, but solely because of the claimant’s refusal to appear before the board or to offer any other evidence in support of the claim than the statutory .affidavit, the action of the town board is tantamount to a refusal to audit the ■claim and the claimant is entitled to a writ of mandamus requiring that it be audited.
    
      Appeal by the defendants, George Mole, Sr., and others, composing the Board of Audit of the Town of Hempstead, from a final order of the Supreme Court, made at the Nassau Trial Term and entered in the office of the clerk of the county of Nassau on the 2d day of October, 1902, as resettled on the 14th day of January, 1903, granting the relator’s motion for a peremptory writ of mandamus, commanding the appellants to reaudit the bill of the relator for services claimed to have been rendered by him as deputy sheriff of Nassau county.
    
      Fred Ingraham.; for the appellants.
    
      Harry G. Clock, for the respondent.
   WlLLABD BaBTLETT, J. I

The propriety of the final order which this appeal brings up for review depends upon the question whether the bill of the relator has ever yet been audited by the board of town auditors of Hemp-stead. The learned judge before whom the issues arising upon the return to the alternative writ of mandamus were tried has held that the defendants refused to audit said bill or claim- and rejected it only “ because the claimant did not submit evidence in proof of it. when requested to do so, and only because of his failure to do so.” If this finding is supported by the- evidence the final order is right, because, while the court has no power to direct by mandamus the disposition which town auditors shall make of a claim submitted to them for their action,. its authority to compel them to act upon the claim and pass upon its merits one way or the other is. unquestionable.

In the present case the account of the relator was made out' in items and accompanied by the affidavit required by section 167 of the Town Law (Laws of 1890, chap. 569). The certificate of the board of town auditors recites that they have examined the account and have wholly rejected the same. It continues: “ The said account having been objected to by a taxpayer of the town, and the claimant having been notified that the said claim was so-objected to, and after being given an opportunity to prove his claim, before the. auditors, he declined to furnish any proof except the affidavit attached to said claim.” Upon the trial one. of the town. auditors, who was sworn as a witness for the defendants, testified that the certificate stated in substance what took place; that, the relator was requested to give further proof and refused; that the board proceeded to examine the claim, and that there was no evidence before the auditors except the affidavit on the claim.

In addition to this evidence it appears that in answer to a question from the court counsel for the defendants stated that the claim was not rejected on evidence but because the plaintiff failed to produce any evidence. This statement under the circumstances must be deemed an admission in behalf of the defendants which the trial court was entitled to take into consideration in its determination of the case. It established a fact not contradictory of the testimony to which I have referred, but in qualification and limitation thereof, and showed that the rejection of the relator’s claim was not based upon any determination as to its merits, but was induced solely by reason of the relator’s failure to appear before the board and offer •evidence in support of his claim. A rejection of the account under such circumstances and for the reason assigned was not really any audit at all. It was tantamount to a refusal to audit, and was rightly so regarded by the trial court.

In reference to the functions of town auditors in cases of this kind it has been said by the Court of Appeals: “ Such board is .a statutory tribunal or court to hear and to allow or reject any claims presented against the town. The examination of the account is the trial and its allowance or disallowance is the judgment of this tribunal.” (People ex rel. Myers v. Barnes, 114 N. Y. 317, 323.) If nothing more appeared in the present case than that the town auditors had examined the account and wholly rejected it, it could not be said that such rejection was a failure to audit. Where, however, the proof shows that although there was an examination the claim was rejected, not as the result of such examination, but because the claimant declined to offer further proof than that contained in the statutory affidavit, it is manifest that there has been no such audit as the law requires.

As the relator’s right to relief is based upon the conclusion that there has not as yet been any audit whatever, there is a technical error in the final order in the direction that the "appellants shall w-audit the bill of the relator. The order should be modified by substituting the word audit, and as thus modified affirmed, with costs.

Goodrich, P. J., Woodward, Hirschberg and Hooker, JJ., concurred. •

Order modified so as to direct an audit instead of a fe-audit of the bill of the relator, and as thus modified affirmed, with costs.  