
    People ex rel. Anibal et al. v. Board of Supervisors.
    
      (Supreme Court, General Term, Third Department.
    
    July 6, 1889.)
    
      Í. Taxation—Equalization—Appeal—Attorney’s Pees.
    Laws N. Y. 1884, c. 435, which provides that, ou the decision of an appeal from the equalization of the hoard of county supervisors, the state assessors shall certify the reasonable costs and expenses, to be paid by the losing party, does not deprive attorneys who have resisted such an appeal on hehalf of the supervisors from recovering the agreed compensation for their services, though such compensation exceed the amount certified for their services by the state assessors.
    2. Same—Audit by Supervisors—Mandamus.
    Where the supervisors refuse to audit the bill for such compensation for want of authority under said statute, mandamus will lie to compel them to do so.
    3. Mandamus—Affidavits—Pacts in Issue.
    In mandamus, where the defendants’ affidavits merely state the affiants’ ignorance of the facts positively alleged in the petition, the allegations of the petition are not put in issue.
    Appeal from special term, Fulton county.
    Petition for mandamus on the relation of Robert P. Aníbal and Michael D. Murray against the board of supervisors of Fulton county. Defendants appeal.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      John M. Carroll, for appellants. Robert P. Aníbal, for respondent.
   Learned, P. J.

This is an appeal from an order granting a peremptory mandamus. The relators in their affidavits state positively that in December, 1886, they made a contract with the board of supervisors through a committee of that body to do certain legal services at a price not less than $1,200 and disbursements, and that they did those services. They produced a report of the committee made to the board, December 21,1886, stating this contract, and an acceptance of the same. The defendants make an answer denying this on information and belief, verified by the present chairman. There are affidavits also produced by the defendants, but they contain no denial of the facts alleged. They only state the affiant’s ignorance of such alleged contract. We think, therefore, that the learned justice properly held that the facts alleged by the relators had not been put in issue by the defendants. People v. Common Council, 77 N. Y. 503, at 511. This rule is not in conflict with the rule that, on granting a peremptory mandamus, the facts stated in defendants’ affidavits must be taken as true. People v. Richards, 99 N. Y. 620, 1 N. E. Rep. 258. The difficulty is that defendants ddnot state facts, nor deny the relators’ allegations. We have, then, the employment of the relators by the board at a specific amount, and the performance by the relators of the-services.

When the relators’ bill was presented to the board, in December, 1887, it was disallowed, in the language of the resolution, “on the ground that this board has no authority to audit the bill for any different amount than is certified by the state assessors, and for no other reason or on no other grounds.” Hence all question as to the alleged contract, etc., is eliminated, and the question is simply one as to the power of the board. The matter in which the relator was employed was an appeal by the town of Perth to the state assessors from the equalization 'of the board of supervisors. How, it is true-that on such appeal the parties really interested to oppose the appellant are the other towns of the county. But it will be seen by section 13, c. 312, Laws-1859, that the notice is to be served on the chairman and clerk of the board. So that the board is made the legal respondent, and not the remaining towns. Therefore it was said in People v. Kingston, 101 N. Y. 82, at page 96, 4 N. E. Rep. 348, that the board was the party respondent in the appeal. It was its duty, as the representative of the county, to defend its equalization, if it believed it to be just, and as incident to the duty it could incur the necessary expenses in defending its action.” We therefore see no reason to doubt that the action of the board in employing the relators was lawful. Probably, in the view of the legislature, the board would eventually place the burden of expense where it belonged.

But the defendants urge that this right of the board to contract for services of counsel in such matters is controlled by the provisions of chapter 435, Laws 1884, amending section 15, c. 312, Laws 1859, as amended, etc. This section is: “ Whenever any appeal so made shall be sustained, the state assessors shall certify the reasonable costs and expenses arising therefrom, and connected therewith, on the part of the appellant and respondent, and such amounts so certified shall be audited by the board of supervisors, and levied and collected,” etc. In accordance with this law, the relators presented their bill to the state assessors at $1,400. It was allowed at $500, and at that amount was included in the respondent’s costs and expenses of $3,312.33, certified by the state assessors. In accordance therewith the board of supervisors allowed the relators’ bill at $500, and this present proceeding is to enforce the residue of the contract price.

This presents the real question in this case. Does the statute authorizing the state assessors to certify the costs and expenses deprive the relators of their rights under their contract; that is, does the statute render the contract void? To enable us to test the question, we may suppose that the relators had contracted with the board to .do all these services for $100. Could they have compelled the board to pay any more? How, if the defendants’ contention is correct, then whenever such an appeal is taken, and the board of supervisors desires to oppose the appellant, the only arrangement it can make with counsel is that they shall receive whatever the state assessors will certify. This is a contract which few would be willing to accept. The state assessors may know what labor was performed in their presence, but they have no opportunity of knowing what was done in the preparation of the case outside.

Further, the statute provides that when the appeal is not sustained the assessors shall certify the reasonable costs and expenses on the part of appellant and respondent, and these shall be a charge on the appellant, to be levied by the board. It seems to us, therefore, that the amounts thus to be certified are somewhat analogous to taxable costs. -As taxable costs do not determine the amount owing by client to counsel, so we think that authority to certify these costs given to the state assessors does not prevent the board of supervisors from contracting with their counsel as to compensation, and that such contract is .binding. Such is the fair inference, also, for the language of the court in the case last cited. “ The board of supervisors must of necessity incur the expenses in the first instance on its own credit;” and a board will have very poor credit if, when it contracts to pay $1,200, this is to be understood to mean, “or as much less as the state assessors may certify.”

The defendants insist that mandamus will not lie because their action was judicial. They did not audit. They refused to audit, believing themselves to have no power. There is no dispute about facts. If the board had said, “We never made such a contract, and the relators’ services are not worth that sum,” the case would have been different. But they very fairly and frankly stated their legal position by the resolution which they adopted. We judge from that resolution that they appreciated the justice of the relators’ claim, but thought that they were forbidden to allow it. We think that the order should be affirmed, with $50 costs and disbursements. All concur.  