
    In the Matter of the Application of Joseph M. Deuel, Respondent, for a Peremptory Writ of Mandamus against William J. Gaynor, as Mayor of the City of New York, and Others, Composing the Board of Estimate and Apportionment of the City of New York, Appellants.
    First Department,
    December 2, 1910.
    Municipal corporations — proceeding to remove justice of Special Sessions, city of New York —audit of cost of successful defense — charter construed.
    The hoard of estimate and apportionment of the city of New York has power to . audit and allow as a charge against'the city the reasonable expense of a justice of the Court of Special Sessions in successfully defynding a proceeding' to remove him from office, even though said section in terms does not specifically name justices of the Court of Special' Sessions as persons entitled to the benefit , thereof. ..
    The amount to he allowed, if any, is within the discretion of the hoard.
    Legislation upon which section 331 of. the charter of the city of New York is based examined and discussed, per Clame, J.
    Laüghliñ, J., dissented, in part, with memorandum.
    . ■ Appeal by the defendants, William J. Gaynor, as mayor of the city of New York,, and others, etc., from an order of the Supreme Court, made at the New' York Special Term and' entered in the office of the clerk of the county of New York on tire 2Tth day of July, 1910, granting a peremptory writ of mandamus.
    
      Clarence L. Barber [Theodore Connoly with him on the brief] and Archibald B. Watson, Corporation Counsel, for the appellants.
    
      Iloadly, Lauierbach c& Johnson [ Charles L. Craig of counsel], for the respondent.
   Clarke, J.:

Appeal from an order of the Special Term directing a peremptory writ of mandamus' to issue to the board of estimate and apportionment, “ to forthwith consider -and determine, as provided in section 231 of the Greater New York charter, a certain application heretofore made by the petitioner to the said Board of Estimate and Apportionment, requesting, it to audit and allow as charges against tlie city of New York, the reasonable cost, counsel fees and expenses paid or incurred by said Joseph M. Deuel, while a J ustice of the Court of Special Sessions of the City of New York for . the First Division, to defend himself and his office in a certain proceeding in the Appellate Division of the Supreme Court'of the State of New York, entitled ‘In the Matter of the Application for the Removal of Joseph M. Deuel from the office of J ustice of the Court of Special Sessions of the City of New York for the First Division,’ upon certain charges and specifications in said petition contained; and after. • making such audit to make such allowance for such costs, counsel fees and expenses as may in the honest judgment of the said Board of Estimate and Apportionment of the City of New York be just and proper.” The petition, After setting up the appointment of the petitioner as a justice of the Court of Special Sessions, the filing of charges and the proceedings had thereon, and the final dismissal thereof, alleges that lie was obliged to retain counsel, and that he had paid out for liis reasonable counsel fees and expenses $11,520.05; that on the 21st of December, 1901), he presented to the board of estimate and apportionment a petition requesting it to audit and allow him as a charge against the city the amount expended in his defense in said proceeding, pursuant to the provisions of section 231 of the Greater New Y ork charter; that on or about the 24th of J une, 1910, the board of estimate and apportionment adopted a resolution rejecting the request on the express grounds that no power was vested in the board of estimate and apportionment to act in the premises; that said action of the board was taken pursuant to an opinion rendered by the corporation counsel to the effect that section 231 of the charter has no application to justices of the Court-of Special Sessions of the city of New York. ' He further alleges that he is advised that the action of the board was based upon an erroneous interpretation of the law, and that he is within the purview of section 231, and that the said board not only has the power, but is charged with the duty of determining said application of petitioner on its merits.

In Matter of Kane v. McClellan (110 App. Div. 44) the Appellate Division in the Second Department unanimously held (Willard Bartlett, J., writing) that section 231 of the charter was constitutional as applied 'to expenses incurred and rights arising after the legislation, and allowed a peremptory writ, commanding the board of estimate and apportionment to consider and determine the petitioner’s claim, and audit and allow his reasonable costs, counsel ■fees and expenses paid and incurred. So, three of the grounds.of objection interposed in the affidavit in reply, namely, that the section is unconstitutional, that, as the board of estimate and apportionment has-acted upon the claim, the peremptory writ will not lie, and, if the said section is constitutional, then it is merely permissive in form, áre disposed of by the decision cited. The real, question is whether a justice of the Special" Sessions comes, within the purview of the section.

Prior to' May 10,. 1895, on which day" chapter 601,- “ An act in relation to the inferior courts of criminal jurisdiction in the city and county of Mew York,” was passed, there existed in the then city of Mew York under the provisions of the Consolidation Act (Laws of 1882, chap. 410, § 1541, as amd. by Laws of 1889, chap. 567) fifteen police justices. There was a Court of Special Sessions, but there were no separate and distinct Special Sessions justices. Section 1546 of the Consolidation Act (as amd. by Laws of 1890, chap. 187) provided" that the. police justices should constitute the board of police justices; section 1570, that the police justices, "by the vote of a majority, shall have the exclusive power to appoint the clerk, deputy clerk, stenographer, interpreter,and other officers of the Court-of Special Sessions; section 1572, that the Court of Special Sessions may be held as often and at such times as the justices thereof may think expedient; that it may be held by any three of the police justices who shall sit alternately,, except that one of their number may be selected to preside; and that the said justices shall meet in convention and ■assign the justices to hold the several terms of said court. At that time section 196 of the Consolidation Act, as amended by chapter 574 of the Laws of 1888, provided that “ The board of estimate and apportionment is hereby authorized to audit- and allow as charges against the city the reasonable costs, counsel fees, with interest and expenses paid and incurred, or which shall hereafter be paid or incurred by any commissioner or police justice who shall have been a successful party in-any proceeding to remove him from office.” So that , prior to May 10, 1895, any police justice", whether assigned to sit in the Court of Special Sessions or not, would have been entitled to submit to the board of estimate and apportionment and have that board audit and allow as charges against the city the reasonable costs and expenses of defending himself against a proceeding to have him removed from office. Chapter 601 of the Laws of 1895 provided, by section 1, that “ from and after midnight of the thirtieth day of June, eighteen hundred and ninety-five, the office of police justice in the city and county of New York is abolished, and all power, authority, duties and jurisdiction then vested in the police justices in the said city and county of New York, and in the courts held by, them,- including the Court of Special Sessions, and in the board of "police justices, and in the clerks, deputy clerks, police clerks and police clerks’ assistants, and in all other officers or employes of said justices or courts, or of the board of police justices, shall cease and determine.” By section 2 it was provided that there shall be nine city magistrates in the city and county of New York, and by an amendment to said section 2 in 1897 (Chap. 382) the number of said magistrates was increased to twelve. By section 3 of the act of 1895 they were to exercise the powers and jurisdiction theretofore vested by law in the police justices, excepting proceedings respecting bastards. Sections 4 to 11, inclusive, as amended by chapter 908 of the Laws of 1895' and chapter 382 of the Laws of 1897, describe the organization of the'board of city magistrates and the manner of conducting said courts and keeping the records thereof, and other matters relating to the newly-created City Magistrates’ Courts.

By section 12 it was provided that on or before June 20,1895, the mayor should appoint five justices of the Court of Special Sessions of the City and County of New York at a salary of $9,000 per year. Section 13 provided that: “ Ón and after the first day of July, eighteen hundred and ninety-five, the Court of Special Sessions of the City and County of New York shall be composed of and must be held by three of the justices of the Court of Special Sessions appointed pursuant to this act. And any order, determination or judgment of two of the said justices shall be the order, determination or judgment of the court. The said court shall sit in every month in the year.”

. Section 14 defines the jurisdiction of the Court of Special Sessions ; section 15 enacts that the justices are also magistrates; section 16 provides for rules ; section 17, which was amended by chapter 98 of the Laws of 1896, provides for clerks; section 18 provides as follows: “All provisions of law, not inconsistent with this act, in force on the thirtieth day of June, eighteen hundred and ninety-five, relating to the Court of Special Sessions and to the police justices holding the same * * * shall remain in force, and shall thereafter apply to the Court of Special Sessions created by this act, and the justices of said court appointed as herein provided.”

On the 30th day of June, 1895, a provision of Jaw, to wit, section 196 of the Consolidation Act, as amended by chapter 574 of the Laws of' 1888, and relating to the police justices holding the Court of Special Sessions, to wit, authorizing the audit' and allows anee by the board of estimate and apportionment of expenses for defending an attack upon their office, was in force, and under section 18, cited supra, we have no doubt that thereafter and until the creation of the greater city said provisions remained in force and effect, and could have been availed of if necessary by a justice of the new Court of Special Sessions-created by the act of 1895.

While it is true that the former police justices and the former Court of Special Sessions were abolished and two now courts created, to wit, the City Magistrates’ Court and the Court of Special Sessions, yet the great body of the law applicable to the two former courts, except as changed or modified or as inconsistent with the act of 1895, was continued and made applicable thereto. This particular provision, made applicable to. the Court of Special Sessions, created by this act, and the justices of said court, - which had applied to the police justices, both those holding the old Court of Special Sessions and the others, was in no way inconsistent with any of the provisions of the new act.

By chapter 431 of the Laws of 1896, section 196 of the Consolidation Act was again amended so as to read : “ The board of estimate and apportionment is hereby authorized to audit and allow as charges against tlié city the reasonable costs, counsel fees and expenses paid ' or incurred, or which .shall hereafter be paid or incurred, by any commissioner, city magistrate or police justice who shall have been a successful party in any proceedings or trial to remove him from office,” etc.

It will be noted' that ■ “ police justice ” was retained, although the office had been abolished, and that “city magistrate” was inserted,, while' no mention was tiiade of a justice of the Court of Special Sessions. The reason for the distinction may be that the language of section 11 of chapter 601 of the Laws of 1895, All provisions of law relating to or defining the powers, jurisdiction and duties of the police justices and the courts held by them * * *, in so far as the same are consistent with .this act, shall thereafter apply to and control the city magistrates appointed pursuant to this act, and the courts held by them,” was not considered broad enough to extend the provisions of section 196 of the Consolidation Act to the city magistrates, because what was made applicable to them were the provisions of law. relating to or defining their powers, jurisdiction and duties, while under section 18 the language was, as applied to the Court of Special Sessions: “ All provisions of law * * * relating to the Court of Special Sessions and to the police justices holding the same, * * * shall thereafter apply to the Court of Special Sessions * * * and the justices of said court.”

It does not seem to us that any other construction is reasonable or logical. We are unable to perceive why any legislative discrimination should have been made between the city magistrates and the justices of the Special Sessions. They were all justices of inferior courts of criminal jurisdiction, and successors of and dividing between them the jurisdiction of the two earlier courts. If a city magistrate is to be reimbursed for his expenses in defending his office, there is no reason why a justice of the Special Sessions should not. In 1897 the charter of the greater city (Laws of 1897, chap. 378) was passed, and section 231 thereof re-enacted section 196 of the Consolidation Act, as amended by chapter 431 of the Laws of 1896, and the revised charter (Laws of'1901, chap. 466, § 231) re-enacted the same. Section 1608 of the charters of 1897 and 1901 provides that: So far as the provisions of this act are the same in terms or in substance and effect as the provisions of the said Consolidation Apt, or of other acts of the Legislature now in force relating to,or affecting the municipal and public corporations, or any of them, herein united and consolidated, this act is-intended to be not a new enactment but a continuation of the said Consolidation Act of eighteen hundred and eighty-two, and said other acts, and is intended to apply the provisions thereof as herein modified to The City of New York as herein constituted, and this act shall accordingly be so construed and applied.”

When the proceeding for the removal of the relator was before this court, its jurisdiction was challenged, because while section 1401a of the revised charter provided that a .city magistrate or police clerk may be removed for cause, after due notice and an opportunity of being heard, by the Appellate Division of the Supreme Court within the division for which such city magistrate or police clerk was appointed, there was no provision providing for the removal of a justice of the Court of Special Sessions, but we held in Matter of Deuel (116 App. Div. 512) that the provisions of the act of 1895 still being in force, this court had jurisdiction of the proceeding. The provision referred to was that contained in section 28 of the act which provided that the city magistrates and their clerks, and the justices of the Court of Special Sessions and the clerk of said court, appointed pursuant to this act, may be removed for. cause after dtie notice and an opportunity of being heard by the General Term of the Supreme Court in the First Department, or after the 1st of January, 1896, by'the Appellate Division of the Supreme Court iii the First Department.

As we held that the act of 1895 was still in existence for the purpose of giving jurisdiction to this- court to consider charges upon, which were based a motion for the removal of the relator, notwithstanding the fact that by the charter there was a provision only for such proceedings in the case of a city magistrate, it seems only consistent to hold that the provisions of said act, providing for the audit- and allowance of the expenses of such proceeding, are continued, notwithstanding that in the charter - city magistrates are mentioned and the-justices of the Special.Sessions are not. We are of the opinion, therefore, that the relator,' as matter of right, was entitled to present his petition to the board of estimate and apportionment; that it was -the duty of' that board to consider the same upon its merits; andas it appears that it failed so. to consider it, solely upon the ground of want of power, that the order appealed from was right.

We think the amount to be -allowed, if any, is within the discretion of the board. The language of the.statute is ‘‘the board * * * is hereby authorized to audit and allow * * ■* the reasonable costs, counsel fees and expenses paid or incurred.” In People ex rel. Brown v. Board of Apportionment (52 N. Y. 224) Andrews, J., said: “ To audit a claim ex vi termini imports the exercise of judgment; and a claimant proceeding under this statute, and invoking in his behalf thé exercise of the power conferred on the board of audit, was bound' to submit to the jurisdiction, as defined by the statute^ and could not demand that the board should allow his claim without passing upon his right to payment.”

In People ex rel. Myers v. Barnes (114 N. Y. 317) the court said: To audit is to hear, to examine an account, and in its broader sense it includes its adjustment or allowance, disallowance or rejection.”

Again, “ If the judgment constitutes an absolute liability against the town, why go through the mere formality of presenting to the board for audit an allowance at all ? Or what necessity or propriety in asking the court’s 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.” (See, also, People ex rel. Hamilton v. Supervisors, 35 App. Div. 239.)

We interpret this statute, therefore, as conferring authority upon the board, to examine into the claim and to allow such sum as it deems reasonable.

The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements to the respondent. .

Ingraham, P. J., Scott and Miller, JJ., concurred.

Laughlin, J.

(concurring) :

I concur in the views expressed by Mr. Justice Clarke with respect to the authority of the board of estimate and apportionment to audit and allow the claim of the petitioner, but I am of opinion that the proper construction of the statute is that the authority carries with it a duty to audit and allow the reasonable costs, counsel fees and expenses necessarily paid or incurred by the petitioner in successfully defending against the proceeding to remove-him from office.

Of course, many statutes, known as enabling acts, merely confer authority on municipal bodies, boards or officers to audit and allow in their discretion claims founded on an equitable or a moral obligation. although not enforciblebut as I view it, this is not of that character, and, if it were, 1 think that there would be no propriety-in granting a writ of mandamus, because if there be no duty to allow the claim or any part of it, even though it be established by uncontroverted evidence, then it is quite immaterial on what ground it has been rejected by the board. Of course, the board of estimate and apportionment is vested with discretion in the sense that the authority to determine what is a reasonable amount to allow is vested in it, but it is not, in my opinion, vested with discretion to allow or not to allow such reasonable amount when determined by it.

I am of opinion that-the Legislature itself determined that all .such claims should be paid by the city oil the reasonable amount thereof being determined by the board, and did not intend to leave it discretionary with the board to allow one and to reject another.

Order affirmed, with ten dollars costs and disbursements.  