
    The People of the State of New York ex rel. The Village of Brockport, Relator, v. John Sutphin and Others, Constituting the Town Board of the Town of Sweden, in the County of Monroe, New York, Respondents.
    
      Beincorporation of the village of Broekport — irregula/i'ity therein cured by acquiescence— the title of chapter 84 of the Laws of 1873 embraces the subject — village claim against the town for certain fees of salaried, police justices and policemen —proof required that the offices were salaried — a claimant is entitled to notice that his claim is insufficient or unsatisfactory — the title to office of a defacto officer not considered in a collateral proceeding-—the remedy afforded by section 163 of chapter 569 of the Laws of 1890 is inapplicable — when a town board loses its jurisdiction over claims so that a certiorari will not issue to it to revieio its audit of them.
    
    The village of Broekport was incorporated in 1829, and reincorporated, by a majority of votes cast on June 25,1872, under chapter 291 of the Laws of 1870. Some question arising as to the validity of this election, it was confirmed and validated by section 3 of chapter 04 of the Laws of 1873.
    During a portion of the year 1897, the whole of the year 1898 and part of the year 1899, certain persons assumed, respectively, to perform the respective functions of a police justice, acting police justice and policemen in such village and were paid salaries, for the cervices so rendered, by the village, which, November 10, 1898, presented for audit claims for the accounts of such officials to the town hoard of the town of Sweden, in which the village was situated.
    By the provisions of sections 185 and 190 of the General Village Law (Laws of 1897, chap. 414), claims for fees in criminal actions and proceedings which would he payable to a police justice or policeman, if he were not paid a salary, and which are a town or county charge, are required to be presented to the town or county to which they are chargeable for audit, and all orders or warrants therefor are to be made payable to the treasurer of the village, who is authorized to collect the amount thereof.
    The board voted to reject each and all of the claims so presented, solely upon the ground that they were not legal charges against the town, hut neglected to make and file any certificate of such audit and rejection.
    At a meeting held in October, 1899, the accounts of such officials from the date of the last audit were presented by the village to the town board and were rejected; the proper certificates were filed and the fact of the disallowance was stated in the abstract furnished for that year to the clerk of the board of supervisors of the county. Subsequently the vote disallowing the claims presented in November, 1898, was reconsidered, and said claims were again disallowed and certificates to that effect were filed with the town clerk, but the claims and the fact of their disallowance were not included in the abstract furnished to the supervisors of that county for the year 1899. In a proceeding by certiorari instituted by the village, of Brockport to secure a reversal of the judgment of the town board it was
    
      Held, that the members of the town board could not be heard to claim that the relator had not furnished proof that the officials whose fees were in question were paid salaries by the village at the time the bills were audited, where the writ contained an allegation that the officials in question were receiving salaries, and the return, which, while not denying that these officials were paid salaries by the village, alleged that there was no proof of that fact before the town board, admitted the receipt of the verified bills presented to the town board of audit, which were made a part of the record, in which the services, the name and official character of the person rendering them, each proceeding and the fee therefor were set forth, each particular account having a caption stating that the town was indebted to the village for the services "chargeable or.payable under section 185 or 190 of chapter 414 of the Laws of 1897;”
    That, if the statement and verification contained in such bills were insufficient, or for any reason' unsatisfactory, it was the duty of the board of audit to notify the claimant in order that the correction might be made;
    That the failure of the several officers to accompany their respective bills with proof of their official titles, could not bring up for inquiry, in a collateral proceeding, their titles to their respective offices, the duties of which they were respectively performing;
    That it would have been improper for the relator to pursue the remedy provided by section 163 of the Town Law (Laws of 1890, chap. 569), as that section refers to the accounts of a justice of the peace or town constable;
    That the fact that at the election of 1872, held under the provisions of the act of 1870, which required that the election for the reincorporation of a village should be held from one o'clock in the afternoon until sunset of the same day, the polls opened at ten o’clock in the forenoon and closed at three o’clock in the afternoon, although the sun did not set on that day until half-past seven o’clock, could not invalidate the reincorporation of the village of Brockport, duly declared and certified in accordance with the requirements of the statute, after the lapse of over twenty-five years, especially ns all irregularities in this respect were cured by chapter 84 of the Laws of 1873;
    That the title of a local law need not specify each particular subject where the general subject, as declared, is sufficiently comprehensive to embrace the .various provisions of such a law, and „hat, therefore, the act, chapter 84 of the Laws of 1873. entitled “ An act in relation to the village of Brockport,” which contains seven sections, all relating to the village of Brockport and germane to the subject expressed in the title, is not in conflict with section 16 of article 8 of the State Constitution, which provides that "Ho private or local bill, which may be passed by the Legislature, shall embrace more than one subject, and that shall be expressed in the title; ”
    That as to the bills of 1899, the compliance of the town board with section 170 of the Town Law (Chap. 569 of the Law's of 1890), requiring it to make an abstract of all claims presented and to deliver the same to the clerk of the board of supervisors, caused it thereupon to lose jurisdiction of such bills for the year 1899, and a review of its proceedings in respect to them could not be accomplished by certiorari (Spring and Laughlin, J.T., dissented);
    That'as to the bills of 1898, no abstract of which was ever delivered to the board of supervisors, the jurisdiction of the 'town board over them continued and its action in respect thereto was, consequently, subject to review by certiorari.
    Certiorari issued out of the Supreme Court and attested on the 30tli day of December, 1899, directed to John Sutpliin and others, constituting the town board of the town of Sweden, in the county of Monroe, New York, commanding them to certify and return to the office of the clerk of the county of Monroe all and singular their proceedings had in the matter of certain claims presented to such board by the village of Broclcport.
    The village of Broclcport, which is located in the town of Sweden, Monroe county, has a population of about 4,000 people and was first incorpoi’ated in the year 1829. On the 25th day of June, 1872, by a majority of the votes cast at a special election held for that purpose, it was determined to reincorporate under the general act for the incorporation of villages. (Laws of 1870, chap. 291.) Some question thereafter arising as to the regularity and validity of this election, the same was confirmed and validated by an act of the Legislature. (Laws of 1873, chap. 84, § 5.)
    The village has an organized police department consisting of a police justice and policemen, with provision for an acting police justice, in case of necessity. During a portion of the year 1897, the whole of the year 1898 and a part of the year 1899, the persons whose names are mentioned in the petition and writ herein were assuming to perform the functions of police justice, acting police justice and policemen, respectively, in such village, and it is alleged that for the services rendered by them they were paid salaries by the village.
    The defendants constitute the town board of the town of Sweden, and, as such, are authorized and required by law to audit claims against the town. (Laws of 1890, chap. 569, § 162, as amd. by Laws of 1897, chap. 481.)
    By the provisions of sections 185 and 190 of the General Village Law (Laws of 1897, chap. 414) all claims for fees in criminal actions and proceedings which would be payable to a police justice or a policeman, if he were not paid a salary, and which are a town or county charge, are required to be presented to the town or county to which they are chargeable for audit, and all orders or warrants therefor are to be made payable to the treasurer of the village, who is authorized to collect the amount thereof.
    At a meeting of the town board of the town of Sweden on the 10th day of November, 1898, held for the purpose of auditing accounts, the accounts of .the several officials above referred to against the village of .Broclcport were presented by the village for audit. The board voted to reject each and all of such claims solely upon the ground that they were not legal charges against the town, but neglected to make and file any certificate of such audit and rejection.
    At the meeting of the town board in October, 1899, the accounts of the officials from the date of the last audit were presented by the village and the same were wholly rejected, the proper certificates were filed and the fact of disallowance was stated in the abstract furnished to the clerk of the board of supervisors for that year. Subsequently, and on the 20th day of November, 1899, the vote disallowing the claims presented in November, 1898, was reconsidered, and thereupon such claims were again disallowed and certificates to that effect were filed with the town clerk, but the claims and the fact of their disallowance were not included in the abstract furnished to the supervisors for the year 1899.
    Thereafter, and on the 30th day of December, 1899, the relator obtained a writ of certiorari, which was made returnable within twenty days, but the time to make the return was extended to, and such return was actually made upon, the 27th day of February, 1900.
    
      William F. Cogswell, for the relator.
    
      Delbert A. Adams and Daniel Holmes, for the respondents.
   Adams, P. J. :

The relief sought by this proceeding is a reversal of the judgment of the town board, and the real question to be determined involves the validity of the relator’s corporate existence. Several minor questions, which are somewhat technical in their character, have also been injected into the case, and to these it is proper that some attention should be paid before entering upon a discussion of those which constitute the real gist of the controversy between the parties.

It will be observed by reference to sections 185 and 190 of the General Village Law (Laws of 1897, chap. 414) that it is only in cases where the officials therein mentioned are paid salaries that the t >wn or county is required to reimburse the village for such fees and services as these officials would be entitled to recover from the town or county if they were not paid salaries; and it is contended that inasmuch as no proof was furnished at the time of the audit, and no express admission can be found in the return, that salaries were paid to the police justice and policemen of the village of Brockport, it must be assumed, as a fact fully established, that no salaries were paid to these officers, and that such being the case the relator has no claim against the town. To meet this objection reference is made to the petition and writ, which expressly allege and recite that the officials therein mentioned were paid regular salaries for the services rendered by them respectively ; and it is asserted that inasmuch as the proceeding is to be heard upon the writ and return, and the papers upon which the writ was granted (Code Civ. Proc. § 2138), this allegation, in the absence of any denial thereof in the return, stands admitted. In other words, it is claimed that the petition, writ and return are to be treated as pleadings in an action, and that they are subject to the same rules of construction. This, however, is not an action. It is, rather, a special proceeding "which is to be governed by rules peculiarly adapted to such proceeding (People ex rel. Dexter v. Palmer, 86 Hun, 513); and it seems now to be well settled that under the provisions of section 2138 of the Code of Civil Procedure the court is not at liberty to look beyond the return and consider the facts stated in the petition and accompanying papers, unless the return is an admission of those facts, or the equivalent of an admission. (People ex rel. Miller v. Wurster, 149 N. Y. 549 ; People ex rel. Streubel v. York, 45 App. Div. 503.) There is no such admission in the respondents’ return. On the contrary, while not denying that these officials were paid salaries by the village, it is alleged that there was no proof of that fact before the board at the time the bills were audited. This allegation, however, is not supported by the papers contained in the record, which furnish at least prima facie evidence that the officials in question were receiving salaries by way of compensation for their services, which, in the absence of any negation thereof, either by way of proof or express averment, we think may be regarded as sufficient for the purposes of this hearing. For example, the claims presented to the town board were in writing and purported to set forth in detail the services rendered, the name and official character of the person rendering the same, the proceeding in which they were rendered and the fee charged therefor, in each instance. Moreover, to each particular account a caption was attached which stated that the town of Sweden was indebted to the village of Brockport for services of the person named therein, either as a policeman or police justice, chargeable or payable under section: 185 or 190 of chapter of the Laws of 1897.

As has already been made to appear, these claims would not he chargeable or payable by the town under either of these sections unless the officer who rendered the services and made the charge "was paid a" salary by the village ; and such being the case, the declaration was, we think, equivalent to a statement under oath that the person making it was a salaried officer of the village of Brockport.

The respondents, in the 12th subdivision of their return, having admitted that they received these several verified bills, and having failed to traverse such proof as they furnish or to deny the express averment contained in the petition and writ, cannot now with very good grace assert that the record contains no proof whatever of the essential fact of'salaried service.

The return was obviously drawn with much care and with the design of raising every question which was available to the respondents, and its omission to tender any issue upon this important subject is certainly significant if not conclusive.

It is further urged that no evidence in support of the claims, other than the bills themselves, was furnished to the town board, and that it was not made to appear that all the formalities for the appointment of the police justice and policemen named therein had .been observed. In answer to the first of these propositions, it is necessary only to suggest that the bills were duly verified ; that each one of them showed upon its face that the service charged for was rendered in the town of Sweden; that no further or other proof as to their correctness was demanded, and that they were 2-ejected without inquh’ing as to their merits, although two of the persons who had rendered the services charged for were, ex officio, members of the board of audit.

It is true that the statement a2id verification were furnished by an interested party, and for that i-eason the board were not compelled to accept them, although uncontradicted (Matter of Lanehart, 32 App. Div. 4), but if the same were insufficient or for any reaso2i unsatisfactory, it was the duty of the board to notify the claimant in order that a correction might be made. (People ex rel. Sherman v. Supervisors of St. Lawrence County, 30 How. Pr. 173.)

As respects the failure of the several officers to accompany their hills with proof of official title, it is sufficient to say that the title to . the offices, the duties of which they were respectively performing, cannot be inquired into collaterally. (Matter of Grady, 15 App. Div. 504.) It is not pretended that they were not de facto office2,s of the village of Broclq>ort; neither is it denied that as such they had rendered the services charged for, or that the town had received the benefit thereof.

Again, it is insisted that section 163 of the Town Law (Laws of 1890, chap. 569) furnishes a remedy which the relator was bomid to pursue rather than the one resorted to. This section provides that if any account of a justice of the peace, or town constable, for fees in criminal proceedings is audited by a town board and disallowed, or the amou2it thereof is reduced, the party presenting the same shall have the light to appeal to the board of superviso2-s of the county, which latter board may audit and allow the account. But the very obvious obstacle in the way of the relator’s availing itself of this statute is that the accounts which it is seeking to collect arc not those of a justice of the peace or a town constable. On the contrary, they are the accounts of certain police justices a,nd police-2iien of a village, for the collection of which another remedy is expressly provided by statute, and this remedy when resorted to excludes the right to either appeal or bring suit. (People ex rel. Baldwin, v. Supervisors of Livingston County, 26 Barb. 118 ; Adams v. Supervisors of Oswego County, 66 id. 368 ; Martin v. Supervisors of Greene County, 29 N. Y. 645.)

As was said by Andrews, J., in Osterhoudt v. Rigney (98 N. Y. 222, 232): “ The board of audit is the tribunal to which the law has committed the settlement and adjustment of town charges, and the purpose for which it was created would be to a great extent defeated, if its decisions could be drawn 'into controversy in the courts whenever an error of judgment should be alleged.”

With those preliminary questions thus disposed of, we are now brought to a consideration of the proposition advanced by the respondents in justification of their action in rejecting the bills which constitute the relator’s claim and the one which, as has already been intimated, doubtless has given rise to the controversy between the town and village, viz., that the attempted reincorporation of the village of Brocbport under the act of 1870 was void because (1) of certain irregularities in the special election of 1872, and (2) because of the un constitutionality of the act of 1873, which was designed as a corrective for such irregularities.

The Reincorporation Act (Laws of 1870, chap. 291) gave to any village theretofore incorporated the right to determine by a vote of its electors whether it would surrender its special charter and incorporate itself under the general law. Taking advantage of the privilege thus conferred, a special election was held in the village of Brocbport on the 25th day of June, 1872, at which, by a vote of 167 to 135, the proposition to reincorporate was adopted. It seems, however, that under the provisions of this act it was required that an election for such a purpose should be held from one o’clock in the afternoon until sunset of the same day (Laws of 1870, chap. 291, § 30, tit. 8; § 5, tit. 4; § 15, tit. 2), whereas, at this particular election the polls were opened at ten o’clock in the forenoon and closed at three o’clock in the afternoon, although the sun did not set on that day until about half-past seven o’clock. It cannot, of course, be denied that there was here a very serious departure from the plain letter of the statute, and one which, had the question been duly and properly raised, would doubtless have invalidated the election ; but the result was not only duly declared and certified in accordance with the requirements of the statute, but it was apparently acquiesced in by everybody for upwards of a quarter of a century, and not until the attempt was made to collect the relator’s claims of the town of Sweden was any question of irregularity raised. In the meantime, and on the 14th day of March, 1873, the Legislature passed an act validating and confirming the attempted reincorporation of the village and all the proceedings had for that purpose, the election of village officers pursuant thereto, and all the acts and proceedings of the board of trustees and other officers so elected.

This act, it must be conceded, effectually remedied all irregularities in the election of June twenty-fifth, provided there was nothing in the act itself which was violative of the fundamental law of the land. It is insisted, however, that the act embraces subjects other than the one expressed in its title, and that for that reason it is repugnant to section 16 of article 3 of the State Constitution, which declares that, “Mo private or local bill, which may be passed by the Legislature, shall embrace more than one subject, and that shall be expressed in the title.” But what these different subjects are is not made entirely clear, nor are we able to discover, upon careful examination of the various provisions of the act, any foundation for the respondent’s contention. The act is entitled : “ An act in relation to the village of Brockport” (Laws of 1873, chap. 84), and it contains seven sections. The first two relate to the election, compensation and duties of assessors of the village; the 3d authorizes the trustees, under certain restrictions and limitations, to raise and expend a highway tax; the 4th empowers the trustees to license, regulate and prevent the public use of, or keeping for public use or hire, billiard tables or bowling alleys within the village; the 5th, as has already been stated, confirms and validates the special election ; the 6th provides for the election of a police justice and defines the jurisdiction and power of that official; and the 7 th declares that the act shall take effect immediately. Thus it will be seen that each separate provision of the act does relate to the village of Brockport, and, consequently, that the act in its entirety is one which fully justifies and is correctly defined by its caption or title.

It is no part of the duty of. courts to scrutinize too closely the details of a law in order to discover therein some constitutional infirmity. On the contrary, they should indulge every presumption in favor of the validity of legislative acts, and endeavor to uphold them until convinced that there "is a substantial departure from the organic law; and where, as in this case, the title of a local law expresses a general purpose or object, all matters fairly and reasonably connected therewith, and all measures which will or may facilitate the accomplishment of such purpose or object are properly incorporated into the act and are germane to the title. In short, it is not necessary that the title should specify each particular subject, if the genera,! object, as declared, is sufficiently comprehensive to embrace the various provisions of such a law. (People ex rel. City of Rochester v. Briggs, 50 N. Y. 553; Neuendorff v. Duryea, 69 id. 557.)

We are of the opinion that the subject of an act as expressed in the title, “ An act in relation to the village of Brockport,” properly relates to and embraces the various objects accomplished by the act in question, because each and every one of those objects is quite germane to the general subject; and, if this be so, it necessarily follows that the act does not violate either the letter or the spirit of the Constitution in the respect claimed. (Van Brunt v. Town of Flatbush, 128 N. Y. 50.)

Some question is also raised as to the right and power of the Legislature to create local magistrates and to confer upon them criminal jurisdiction, but that the Legislature does possess such power is too well settled to justify any discussion of the subject (Curtin v. Barton, 139 N. Y. 505; People ex rel. Saloom v. Whitney, 32 App. Div. 144), and we, therefore, proceed to the consideration of the only remaining question and the one which is not altogether free from embarrassment.

It is contended by the learned counsel for the defendants that, even admitting the entire validity of the relator’s claim, and that it was the duty of the respondents to audit and allow the same, a review of their proceedings cannot be accomplished by certiorari for the reason that when the writ herein was issued the town board had adjourned and consequently had lost jurisdiction of the proceedings ; and in so far as the writ seeks to review the action of the respondents in auditing and rejecting so much of the relator’s claim as relates to the bills of the police justice and policemen of the village of Brockport, presented for audit in the year 1899, we think this contention is well founded; for as to those accounts it appears that the respondents have in all respects complied with the requirements of section 170 of the Town Law (Laws of 1890, chap. 569), which provides that “ Boards of town auditors shall annually make brief abstracts of the names of all persons who have presented to them accounts to be audited, the amounts claimed by each of such persons, and the amounts finally audited by them respectively, and shall deliver such abstracts to the clerk of the board of supervisors, and the clerk shall cause the same to be printed, with the statements required to be printed by him.” And having done this, the board thereby lost all control over and jurisdiction of the matter. In discussing this precise question, it was said by the Court of Appeals, in a somewhat recent case, that not only is the issuing of such a writ discretionary, “ but to be effectual, it must be prosecuted while the board of audit has jurisdiction of the proceedings. Its jurisdiction of accounts presented for audit terminates with the delivery to the supervisor of the schedule of audited accounts, and after that has been done, a certiorari directed to the board would be fruitless * * -x- qqie remedy by certiorari, therefore, must be taken, if at all, before the delivery of the certificate of audited accounts to the supervisor. * "x" * ” (Opinion of Andrews, J., in Osterhoudt v. Rigney, supra, p. 230.)

It is true that this expression of opinion was incidental to the real question at issue in the case just cited, and that since the decision of that case, the Appellate Division of the third department, by a divided court, has applied a different rule. (People ex rel. Andrus v. Town, Auditors, 33 App. Div. 277.) The weight of authority, however, seems to be decidedly in accord with the doctrine enunciated by Judge Andrews in the Osterhoudt case. (People ex rel. Smith v. Town Auditors, 5 Hun, 647; People ex rel. Rice v. Auditors, 65 id. 414; People ex, rel. Cochran v. Town Auditors, 74 id. 83 ; People ex rel. Jonas v. Town Auditors, 49 App. Div. 4.)

But as respects the bills presented to the town board in 1898, the case is somewhat different. It is not pretended that any abstract of those bills was ever delivered to the board of supervisors. . A schedule of claims audited by the town board that year was presented to the board of supervisors, it is true, but it contained no mention „of or reference to those here in dispute.

¡Now, the statute requires that the town board shall annually make and deliver to the clerk of the board of supervisors an abstract of the names of all persons who have presented claims to be audited, the amounts claimed by each of such persons and the amounts finally audited by them respectively; and it is conceded that the hills of the police justice and policemen of the village of Brockport for 1897 and 1898 were presented to the town board for audit, and that they were examined and disallowed. They were, therefore, audited, within the meaning of that term (People ex rel. Myers v. Barnes, 114 N. Y. 317), and the fact of their audit and rejection should have been reported to the board of supervisors. Having failed to comply with the requirements of the statute in this respect, it seems to us that, within the rule laid down in the Osterhoudt case, tlie respondents’ jurisdiction as to this portion of the relator’s claim has not terminated, and, consequently, that their action is to that extent subject to review and correction by certiorari.

Our conclusion, therefore, is that as to the portion of the relator’s claim last referred to the determination of the board of town auditors should be reversed, and the claim, to that extent, allowed, with costs; and that as .to the remaining portion of the claim the wi’it should be dismissed.

Determination of the board of town auditors rejecting that portion of relator’s claim presented for audit in 1898, reversed, and the same adjusted and allowed, with .fifty dollars costs and disbursements ; and as to that portion of relator’s claim presented in 1899, the writ is dismissed.

McLennan and Williams, JJ., concurring; memorandum by . Spring, J., in favor of reversal as to both claims; Laugiilin, J., concurring.

Spring, J.:

T do not believe the relator is remediless because the toivn board happened to adjourn. I think section 2125 of the Code of Civil Procedure is applicable and the reversal should relate to the claims of both years.

Laugiilin, J., concurred.

Determination of board of town auditors rejecting that portion of the relator’s claim presented for audit in 1898, reversed, and the same readjusted and alloived, with fifty dollars costs and disbursements ; and as to that portion of relator’s claim presented in 1899, the writ is dismissed.  