
    PEOPLE ex rel. SUTLIFF v. BOARD OF SUP’RS OF FULTON COUNTY.
    (Supreme Court, General Term, Third Department.
    December 6, 1893.)
    1. Counties—Claims against—Hearing before Committee of County Board. Where a claim against a county is referred by the board of supervisors to a committee, and the claimant has notice of the proceedings, and is present by counsel and examines witnesses, it is not error to refuse to allow him to argue the case before the full board.
    3. Same—Conduct of Committeemen.
    Where the hearing of a claim before a committee of the county board occupied seven days, the fact that some of the members went out from time to time during the hearing is not such an irregularity as will require their finding to be set aside.
    8. Same—Rulings on Evidence.
    Error of the county board in admitting or rejecting evidence offered on the audit of a claim does not vitiate the determination of the board except in extreme cases.
    4. Same—Separate Consideration of Items.
    Where a claim consisting of several items is presented to the county .board for audit, the board must pass on each item separately.
    Application by Daniel E. Sutliff for certiorari to review the action of the board of supervisors of Pulton county in auditing two claims .against the county.
    Reversed.
    For former reports, see 19 N. Y. Supp. 773 and 20 N. Y. Supp. 280.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Smith & Nellis, (Andrew J. Nellis and John M. Carroll, of counsel,) for relator.
    N. H. Anibal, (J. A. Dennison, of counsel,) for respondent.
   PUTNAM, J.

This is a certiorari brought to review the proceedings of the board of supervisors of the county of Fulton in auditing two bills of relator as late sheriff of said county. Bill No. 1, a copy of which is set out in the return, consists of 1,287 items, and .at the end thereof is the following recapitulation:

Fulton County, to Daniel E. Sutliff, Dr.

For board of prisoners, per schedule No. 1, 12,490 days, 1,784 2-7 weeks, at $3.50 per week................................... $6,245 00

For tub fees, emptying tubs for prisoners, per schedule No. 1, 1,784 2-7 weeks, at 75 cents per week........................ 1,338 21

For washing for prisoners, per schedule No. 1, 1,784 2-7 weeks, at 75 cents per week....................................... 1,338 21

For 2,577 turnkey’s fees, per schedule No. 1, at 37½ cents....... 966 37

Total amount of schedule No. 1...........................$9,887 79

Bill No. 2 contains charges for taking prisoners to court, arrests, services, expenses, etc., and has at the end thereof the following .¡recapitulation:

Fulton County, to Daniel E. Sutliff, Dr.

For taking prisoners to court, schedule No. 2....................$ 8 96

For criminal arrests, schedule No. 2............................ 75 65

For services, expenses, etc., schedule No. 2..................... 346 58

Total ..................................................... $431 19

Both bills were properly verified, and were duly presented to the supervisors for audit. The board appointed a committee, before whom the parties and their witnesses appeared, and a large amount of testimony was taken. At the end of the hearing the committee reported, recommending the passage of the following resolution:

“Resolved, that the bill or claim of Daniel B. Sutliff, as sheriff of Fulton county, from Nov. 1, 1888, to Sep. 1, 1889, for $9,887.79, be audited and allowed at $1,809.02.
“Resolved, that the bill of Daniel E. Sutliff, as sheriff of Fulton county, called ‘Schedule No. 2’ for $431.19, be audited and allowed at $301.06.”

The report was adopted by the board.

It is urged on the part of appellant that the supervisors erred in receiving incompetent evidence, in refusing to strike out evidence taken in the absence of relator and his counsel, in refusing to allow relator to address the board, in allowing testimony taken before the committee to be read to the board in the absence of some of its members, and in other regards. We are of opinion, however, that no such error was committed in the regard above mentioned as requires a reversal of the determination of the supervisors. On the bills being presented, the board appointed a committee. Belator seems to have had a reasonable notice of the proceedings, and to have had an opportunity, with his counsel, to examine and cross-examine witnesses, and at the end of the examination stated that he had no other witnesses to examine. Counsel for relator was allowed to discuss the case before the committee at length. Whether he should be allowed to make an argument before the full board, or whether the stenographer’s minutes taken by the committee should be written out for the use of the board or not, was a matter within the discretion of the supervisors. And if some of the members went out from time to time during the reading of the testimony taken before the committee, which reading lasted seven days, we are of opinion that this fact would not compel us to set aside the finding. See People v. Board of Police Com’rs, 23 Hun, 351.

Although the court may review the action of supervisors in extreme cases in improperly receiving or rejecting evidence offered on the audit of a claim against the county, (People v. State Assessors, 47 Hun, 450,) yet, ordinarily, an error of the board of supervisors or its committee in receiving incompetent evidence will not cause a reversal of its determination, (People v. Board of State-Assessors, 22 N. Y. Wkly. Dig. 453; People v. Hair, 29 Hun, 125;. People v. Keator, 17 Abb. N. C. 369.) In the last case, the learned judge delivering the opinion of the "court says:

“Now, this is a special proceeding,—a proceeding authorized to be taken under a special statute; it is not an action or proceeding to be conducted according to the strict rules of the common law, either in the admission! of evidence or otherwise. It is like the case of People v. Police Com’rs, 93 N. Y. 97. As there said, in regard to that case, having- in view the special powers conferred, and the purpose to be attained, by the proceeding,, it is not to be limited or trammeled by an' application of strict legal rules,, which prevail on trials and proceedings in courts of law.”

Doctrines stated by the court in that case are applicable to this-case. See, also, People v. Board of Police Com’rs, 98 N. Y. 332-334. We are hence of opinion that none of the objections to the proceedings of the supervisors aboyé considered should cause a reversal of the decision made.

It is also urged by the appellant that, upon the evidence given in-the case, relator was clearly entitled to the allowance of his bill, or-the greater part thereof, and that defendants had no right to reduce-the same as they did. It is true that under the provisions of subdivision 5, § 2140, Civil Code, the court can examine the evidence and set aside the determination of the board in the same cases that a court could set aside the verdict of a jury as against the preponderance of evidence. People v. French, 119 N. Y. 502, 23 N. E. 1058. But in this case it would be somewhat embarrassing for the court to undertake the examination of the very voluminous evidence given,, with the view of deciding which items of the plaintiff’s bill are supported by the testimony, for the reason that it does not appear from the return of the supervisors, or by their decision, what items of plaintiff’s claim were allowed, and which were disallowed. The return shows a very long account presented by the relator, consisting of two claims, one of $9,887.79, and the other of $431.19. The first bill was allowed at the sum of $1,809.02, and -the other at $301.: 06. It is impossible to say from the return of the board what items-were allowed, and what were disallowed. • A very large amount of" testimony has been taken in this case, and the parties have necessarily incurred great expense, and we should much prefer to reach-a conclusion sustaining the findings of the supervisors. But we-think that they failed to discharge their duty in failing to pass upon the items of plaintiff’s claim. They failed to audit the bill properly,, and hence, within the provisions of subdivision 3, § 2140, Civil Code,, their determination should be set aside. That the allowance by the-supervisors of a gross sum on relator’s bill, instead of passing on. the items thereof, was not a proper audit, is well settled. In People v. Board of Town Auditors, 20 Hun, 150, the question, was passed upon "by this general term, and in the opinion the following language is used:

“But, in order to a proper and legal audit of the account, the board must examine the bill in detail and allow or disallow the various items. It would be no proper or just audit of an account made up of numerous items to allow a gross sum instead of considering and passing upon the items. This was held in People v. Board of Sup’rs of Delaware Co., 45 N. Y. 196. * * * This precise question was decided in the case last cited. A. legal and proper auditing of an account requires an examination of the items of which it is composed, and the allowance or disallowance of them, accordingly as they, shall be found correctly or incorrectly charged, both in fact and law.”

The above case was affirmed by the court of appeals. 82 N. Y. 80. The result is that defendants have failed to pass upon plaintiff’s claim. They must pass upon the items, and should so discharge their duty in that regard that the relator will be able to know which items were allowed, and which disallowed. It may not be necessary for the board, in their decision, to pass on each item of relator’s bill separately. For instance, if they should disallow all "turnkey’s” fees and all “tub” fees, it would be sufficient to so declare without specifying each item. If they should allow the number of weeks’ board claimed, but reduce the price, it would be sufficient to merely state the price per week allowed. But in some way the board should pass on and allow or disallow the items of relator’s bill, and in such a way that it may" be known what the determination in fact was as to each item. This may cause much trouble, but it seems necessary, under the statute and decisions. In People v. Board of Sup’rs of Clinton Co., (Sup.) 20 N. Y. Supp. 273, where relator had charged a large number of days’ board of prisoners at a sum stated, we held that one finding of the supervisors fixing the price of board at 60 cents applied to a large number of items was sufficient; that in fact the supervisors passed on the items of relator’s bill. In this case, as above suggested, defendants may be able to pass on many items in the bill in question in one finding, but in any event they must audit the items of the bill. On such an audit, if the relator is dissatisfied, the items allowed and disallowed being known, the evidence can be examined, if necessary, to determine whether the finding of the supervisors is supported or unsupported thereby. The determination of the board of supervisors should be reversed, with $50 costs and disbursements to the relator.

MAYHAM, P. J., concurs.

HERRICK, J.,

(concurring in result.) It seems to me that as to many of the items in the relator’s account there is no fee or compensation allowed by law, and that for such he is not entitled to recover under Code Civil Proc. § 3280. The board should also determine what the actual expense has been to the relator in providing the prisoners in his care with food pursuant to the statute. See Birdseye’s St. p. 2301; Laws 1847, c. 460, tit. 1, art. 1, § 8.  