
    The People of the State of New York ex rel. John Hamm, Relator, v. The Board of Town Auditors of the Town of Carrollton, Cattaraugus County, N. Y., and Others, Appellants.
    
      Board of town auditors — it must pass upon eacli item of a claim — it is a continuous entity — the ■misappropriation of town moneys by a highway commissioner is not to be considered by the town board in auditing his claim — what is not a judicial determination of the claim—mandamus to compel audit, certiora/i'i to review it.
    
    A board of town auditors in passing upon an account presented to it acts judicially, and, under section 162 of tlie Town Law (Laws of 1890, chap. 569), it is required to pass upon each item of the account.
    The town board is a continuous entity.
    
      Semble, that the fact that a commissioner of highways has misappropriated commutation moneys, received from corporations assessed in the town, is no sufficient ground for the town board refusing to audit or reducing his account as highway commissioner against the town.
    
      A disallowance of an entire bill (which has already been allowed at about onetliird of its face by a previous town board) in the absence of the claimant, who had procured a writ of mandamus requiring its audit item by item, held not to be a judicial determination Which precluded the granting of another writ requiring the board to audit the bill after notice to the claimant.
    The audit may properly be directed by mandamus; when made it is re viewable by certiorari.
    Appeal by the defendants, The Board of Town Auditors of the town of Carrollton, Cattaraugus county, N. Y., and others, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of Erie county on the 20th day of December, 1898, directing that a peremptory writ of mandamus issue requiring the defendants to meet and audit the accounts of the relator.
    , During the years 1895 and 1896 the relator was commissioner of highways of the town of Carrollton, in the county of Cattaraugus. In the fall of 1895 he presented his account, duly itemized and verified, amounting to $198.74, to the town board for audit. The auditing board allowed the same at the gross sum of $60 without any specification as to the items allowed or those rejected. This claim was presented to the hoard of supervisors, and an order signed by its clerk for that sum was tendered to the relator, which' he refused to accept. In the year 1896 the same account in the same form was again submitted to the town board for audit, with his account in items, duly verified, for the year 1896, aggregating $180.50. The auditing board allowed this claim at the gross sum of $60, which the relator also declined to accept. On the 23d day of November, 1896, upon the petition of the relator, an alternative writ of. mandamus was issued out of this court requiring the town board to meet forthwith and pass upon the accounts of the relator, item by item. In response to this writ the town hoard did assemble, without notice to the relator and in his absence, and summarily rejected both accounts and each and every item thereof. On the twenty-ninth of December the alternative writ was vacated by an order of the Special Term of this court by reason of an irregularity. On the 12th day of January, 1897, another alternative writ was issued, and a return thereto was made, and a trial had on the mei'its before a referee, who decided that the relator was entitled to judgment directing a peremptory writ of mándamus to issue commanding the .defendants to assemble and audit the accounts of the relator, item by item, .giving the relator five days’ notice of this meeting. An order was granted at Special Term on the 15th day of December, 1898, directing the issue of the peremptory writ, in pursuance of the report of the referee, and the defendants appealed from that order. The evidence which was taken before the referee is not contained in the record.
    
      Hudson Ansley, for the appellants.
    
      M. B. Jewell, for the respondent.
   Spring, J.:

The relator, as commissioner of the highways of the town, was charged with the care and supervision of its highways. He was not an officer serving without compensation, but was entitled to two dollars per day for his services in the performance of his official duties. It was incumbent upon him to make out his account by items and present the same to the town board for audit, which he did. In the fall of 1895 the account was not only itemized but divided into three subdivisions, one comprising the items for his services each day as commissioner, one for- the work with teams, and one aggregating twenty-three dollars and eighty-five cents, representing money he had expended in the prosecution of his official duties.

Section 162 of chapter 569 of the Laws of 1890, which is the Town Law, provides as follows: “ If any account is wholly rejected, the board shall make a certificate to that effect, signed by at least a majority of them, and file the same in the office of the town clerk. If the account is allowed, wholly or in part, the board shall make a certificate'to that effect, signed by at least a majority of them; and if allowed only in part, they shall state in the certificate the items or parts of items allowed, and the items or parts of items rejected, and shall cause a duplicate of every certificate allowing an account, wholly or in part, to be made, one of which duplicates shall be delivered to the town clerk of the town, to be by him kept on file for the inspection of any of the inhabitants of the town; and the other shall be delivered to the supervisor of the town, to be by him laid before the board of supervisors of his county at their annual meeting.” (See People ex rel. Remington v. Manning, 37 App. Div. 141.)

The object of this salutary provision is plain. The town board acts judicially, and its duty is to pass upon each item, so that the entire account will receive its attention. If any of the items are improperly disallowed, the person presenting the account is entitled to know precisely what those items are. He may be able to present satisfactory proofs of the justice of the rejected items, or he may wish to review the action of the board. The town board, in this case, disregarded this requirement of the statute. An examination of the relator’s account for each year fails to show any item, or part of the account, justifying an allowance of sixty dollars and the rejection of the balance. The items for services the first year aggregated one hundred and seven dollars and fifty cents, and for team work, sixty-seven dollars and twenty-nine cents, and the account for the second year is made up of items for team work and services rendered by the commissioner. The date and character of each item was given. An inspection of the accounts indicates nothing requiring criticism, as the items are evidently those arising from the fulfillment of his official duties, and are such as are usual in the annual account of a commissioner of highways. In fact, it is quite apparent that the action of the board in making a wholesale allowance of sixty dollars, was not due to any falsity or error in the accounts presented. The justification sought to be made is dependent upon something extrinsic of the matters involved in the accounts.

It is claimed the relator is guilty of misconduct in disbursing the commutation money which he received from corporations assessed in said town; that he failed to pay these moneys to the proper overseers of the road districts, but used them in paying his own employees and for the use of his own teams in working his highways. 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 be confronted with the witnessess against him. The issues involved in the trial,, raised by the return to the alternative writ, have been determined adversely to the defendants by the learned referee, and the relator is now entitled to the decision of the board upon each item presented to it. (Matter of Ramsdale v. Supervisors, 8 App. Div. 550.)

The order directing the peremptory writ does not require the defendants to allow the accounts of. the relator, but to pass upon them. In fact, that it perform the statutory duty it omitted to perform when the accounts were first before it.

It is contended that the action of the board in December, 1896, in assembling after the granting of- the first alternative writ and disallowing the accounts in toto, was a judicial determination. This action was taken in the absence of the relator and during the pendency of proceedings to enable him to ascertain the precise grounds of the- previous rejection of the major part of his accounts. Why the board first allowed each account at the lump sum of sixty dollars, and then, at a subsequent secret sitting, disallowed the same, does not appear. The accounts were the same, and no new facts seem to have arisen. The .relator is entitled to a fair and circumspect examination of his accounts, after proper notice to him. If they are intrinsically wrong, then the errors should be made known to him. If they are rejected in full, or in. part,- because of his misconduct in office, then. he should be apprised of that fact and of the measure taken of his .official culpability by the board.

The board is a continuous entity and had not lost its authority to act upon these accounts because of a change in, its personnel. (People ex rel. Slater v. Smith, 83 Hun, 432, 437.)

Inasmuch as the board has not passed on the accounts as the statute directs, this omission can be reviewed by mandamus. The rule is not in conflict with the cases holding that where the auditing board has acted as the statute directs, its determination can only be reviewed by certiorari.

■ In People ex rel. Myers v. Barnes et al. (114 N. Y. 317, per Curiam opinion, beginning at page 327) and People ex rel. Govers v. New Rochelle (17 App. Div. 603) and kindred cases, the auditing board had exercised its. functions in compliance with the statute, and it was held that certiorari was the proper remedy to review this action. The relator here was seeking primarily to obtain the judicial exercise of power by the town board. When that has been secured, the review may necessarily be by another remedy.

The order is affirmed, with costs and disbursements to the respondent.

All concurred.

Order affirmed, with costs and disbursements.  