
    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 March 19, 1889.)
    
    1. Mandamus—Not proper remedy in case oe rejection oe a claim a»-illegal by town auditors.
    In an action brought by the relator, a commissioner of highways, against the board of town auditors, a mandamus was issued commanding them to-audit certain bills of the relator for costs incurred in an action commenced by him as such commissioner to recover certain penalties, and for moneys expended in the repair of bridges in excess of the appropriation. On the trial it was admitted that the claim on which the action was founded had already been presented to and examined by the board of' town auditors, and rejected by them as illegal. Held, that their determination is like the determination of all courts, conclusive until reversed or modified under proceedings by certiorari, and that a mandamus will not issue commanding that board to do over again what it has done, but with a different result.
    2. Towns—Claims against—Must be credited and allowed by board-
    oe town auditors.
    No claim against a town is obligatory upon, or enforceable against such town until it has been audited or examined and allowed by the board of' town auditors. Its jurisdiction over claims against a town is not only original, but is conclusive until brought under review in another court in the manner prescribed by law. Osterhoudt v. Rigney, 98 N. Y., 222;. The People ex rel. Van Keuren v. Town Auditors, 74 N. Y., 310, followed. Brown, J., dissenting.
    
      T. F. Bush, for app’lt; John F. Anderson, for resp’ts.
    
      
       Affirming 8 N. Y. State Rep., 531.
    
   Potter, J.

—This is an appeal from a judgment rendered at general term of the third department.

The issue arose upon the answer to an alternative writ of mandamus, requiring the respondents as the board of town auditors to audit three claims in favor of the relator against said town and to certify the same to the board of supervisors of the county.

) Thesé claims are for the costs awarded in a judgment against the relator in an action commenced by the relator, as commissioner of highways in said town, against one Charles Hickok to recover penalties incurred by him as one of the overseers of highways in said town amounting to $76.10, which the relator paid with interest on the 3d day of November, 1883, for the necessary costs and disbursements incurred and paid by said relator in the conduct of said action and in two other actions against the said Hickok for the same or a similar purpose, but withdrawn before judgment therein and amounting to the sum of $80.15, and for moneys expended in the year 1881 after the annual town meeting in said town, and in excess of the moneys which came into the relator’s hands for the repairing of bridges in said town, with the alleged consent and approval of the board of town auditors, and amounting to $128.17.

The return to the writ contained allegations that these claims were unlawful and the town was not legally liable therefor, and that these identical claims had been presented by the relator in the year 1883, and again on the 5th day of November, 1885, and upon both occasions the same had been audited and rejected by the respondents as the board, of town auditors.

Upon the trial, after the introduction of evidence of the judgment awarding costs against the relator and of the character and consideration of the other two bills, the admissions hereinafter referred to were made and the evidence was closed; the respondents made a motion for the dismissal of the complaint and writ of mandamus, and. the same was granted over relator’s exceptions and the exceptions were ordered to be heard in the first instance at the general term.

The exceptions were heard and overruled and the order of dismissal affirmed.

I propose to consider first, these admissions and their effect upon this proceeding.

The admissions were as follows: “It is admitted that the bills were presented to the board of town auditors of 1885. That they examined them and decided that the town was not legally liable to pay for the whole or any part of them, .and rejected them. The same admission was made as to the action of the board in the year 1883.” “And it is further admitted that the bills presented to said board of town auditors in November, 1883, were for the same claims as those presented in November, 1885.”

Does not this admission constitute an auditing and a rejection of the claims? To audit is to hear, to examine, an account, and in its broader sense it includes its adjustment or allowance, disallowance or rejection. People ex rel. Brown v. Board Appt., 52 N. Y., 227.

The statute has created a board of town auditors to examine and decide upon claims made and presented against a town (1 R. S., 358-359, or 330-331, 1st vol. R. S.; also 328, 461, 479; Laws 1881, chap. 701) in relation to judgments against towns or highway commissioners.

- 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.

/ No claim against a town is obligatory upon or is enforcable against a town until it has been audited or examined and allowed. Its jurisdiction over claims against the town is not only original but it is conclusive until brought under review in another court in the manner prescribed by law. Osterhoudt v. Rigney, 98 N. Y., 234.

The board of town auditors is to determine whether a claim presented is a town charge and the amount of it or the portion of it, which is a town charge. •

The claims presented generally involve questions of mixed law and fact. In some instances the board wrill have nothing to examine as to the amount of the charge but simply whether the prosecution or defense was conducted upon reasonable grounds and in good faith.

In certain classes of town charges, the amount is fixed by statute, by agreement, or by the judgment of a court. Such are claims for salaries fixed by law, or the amount of damages or costs awarded by the judgment of a court. In some cases, where the rate of compensation by the day is fixed by the law, the board determine the amount, by ascertaining the number of days of service. For instance, a claim presented by highway commissioners that a judgment recovered against them for injuries arising from a defective bridge or highway. In such a case a board of town officers * * * shall have power to audit and pay, if they shall deem it just so to do. Laws of 1881, chap. 700-4.

This board must determine the legality of the claim and whether it is a town charge. Oftentimes the legality and not the amount of the claim, is the main, if not the only question for examination. Tenny v. Mautner, 24 Hun, 340; People v. Board of Supervisors, 93 N. Y., 403.

I think that it may be stated as a general, if not universal proposition, that no claim can be collected of or enforced against a town until it has been audited and allowed by the board of town auditors. 3 N. Y., supra, p. 403; The People ex rel. Van Keuren v. Town Auditors, 74 N. Y., 310.

Statutes have been passed and amended, from time to time, as to the manner of issuing execution against town and other officers and as to what property may be levied thereunder, but such statutes do not effect the question whether a claim is a town charge. Such is the character of § 1931, O. P.

If the claim embraced in the judgment against the relator is not to be submitted to the judgment of the board of town auditors, it would follow that a highway commissioner may commence actions without cause of action or upon any pretext against any person whatsoever, and when beaten with costs, the town must pay the judgment.

If the judgment constitutes an absolute liability against the town, why go through the mere formality of presenting to the board for audit and allowances at all? or what necessity or propriety in asking the courts mandate to the board of auditors to audit and allow it?

If the board of town auditors have no discretion to exercise in allowing or rejecting such claim, why not present it at once in the first instance to the board of supervisors to levy and raise the money to pay it.

The admission is that all three claims were presented to and examined by the board and were rejected as illegal claims.

Their determination, it seems to me, like the determination of all courts, is conclusive until reversed or modified under proceedings by certiorari. A mandamus will not issue commanding the board to do over again what it has done, but with a different result. This would imply that the supreme court might dictate the judgment of the board. The People ex rel. v. Town Auditors of Elmira, 82 N. Y., 82; Phœnix v. Spvers., 1 Hill, 362; People v. Spvers., 93 N. Y., 404; People ex rel. v. Fairman, 12 Abb., N. C., 272; People ex rel. v. Board of Apps., 52 N. Y., 227.

This court has given construction in People ex rel. Everett (93 N. Y.), to this section 8 (1 R. S., 357, marg.), which has been sometimes thought should be construed to establish an absolute town charge in favor of a town officer. The head-note in that case is as follows: “ In order to make a judgment against a commissioner of highways a town charge, it must have been recovered upon a liability incurred by him while acting within the scope of his authority, and in such case the claim therefor must be presented, passed upon and audited by the board of town auditors.

Besides section 8 (1 R. S., 357, supra) relates to the person in whose favor the judgment against the town officer was rendered, and to his (the judgment creditor’s) remedy to enforce payment of the same. As to him, the judgment is made a town charge, and when levied and collected, the money, shall be paid to him.

■ The claim on account of the judgment, therefore, is for moneys paid out by the relator as commissioner of highways, and so falls within the very letter of the grant of power to the board of town auditors to audit the accounts of town officers for moneys paid out. 1 R. S. (7th ed.), 836.

If these views are correct, then the claims under consideration have been adjudicated by the respondents, and there is no occasion for, or propriety in asking for a mandamus, and hence this court is not called upon to examine the legality of the claim, but the relator must pursue the remedy afforded by certiorari to review the decision of the board. The People ex rel. Millard v. Chapin, 104 N. Y., 96; 5 N. Y. State Rep., 588.

This conclusion leads to an affirmance of the judgment, and harmonizes with the views of all the members of the court at general term as to two of the bills and with two ■of its members as to the third bill, the judgment for costs .against the relator.

There is another defense to this proceeding, if the bills have been audited and rejected by the town board upon their merits,' and that is, that such audit forms a bar to a .re-auditing of the bills by the board of town auditors and to the application for a mandamus requiring them to do so. Ousterhoudt v. Bigney, 98 N. Y., 222; People ex rel. Hotchkiss v. Supervisors, 65 id., 222; The People ex rel. v. City of Kingston, 101 N. Y., 82-94.

This court is not called upon to examine the legality of the claim, or to express any opinion in respect to the question whether these bills, or any of them, are a legal charge upon the town of. Highland.

All concur, Bradley, J., in result, except Brown, J., dissenting, and Parker, J., not sitting.  