
    The People of the State of New York, App’lts, v. John P. Allen, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 25, 1887.)
    
    Criminal law—Perjury—What does not constitute the crime, under PROVISIONS OB CHARTER OB BuEBALO AS TO CLAIMS AGAINST THE CITY.
    It is provided by the charter of the city of Buffalo that the common council shall audit all claims against the city, but that no unliquidated claim shall be received for audit unless made out in detail and accompanied by an affidavit that the claim, and the items and specifications thereof, are in all respects just and true. It is further provided that all claims for materials furnished, and work performed for the city relating to the public buildings, shall, before their presentation to the council for audit have, the certificate of the commissioner of public buildings as to their correctness, and that in case the materials are furnished or work done on or about any public school building, it shall also be the duty of the principal of the school to certify to the correctness of the claim. Corrupt false swearing to any material fact in such affidavit, is thereby declared to be perjury. Reid, _ That false statements corruptly made in an affidavit to such a claim, which was not used before the common council to procure the audit of the claim did not constitute the crime of perjury, no affidavit to the claim being required upon its presentation for the certificate of the other officials named. Haight, J., dissenting.
    Appeal from a judgment of the superior court of the city of Buffalo sustaining a demurrer to the indictment herein.
    
      George T. Quinby, district-attorney, for app’lt; Tracy Becker, for resp’t.
   Smith, P. J.

The appeal in this case is certified to this court by the superior court of Buffalo, two of the judges of that court being disqualified to hear it.

The indictment charges the defendant with perjury in falsely swearing to a bill or account held by him against the city of Buffalo. The bill was for services alleged to have been rendered by the claimant in cleaning out the vault of one of the public school houses of the city, under the employment of the commissioner' of public buildings. The bill as made out and verified by the defendant charged the city with having removed thirty-seven yards, nine feet of night soil at $2.25 per cubic yard, amounting to eighty-four dollars, and the indictment charges that only about six yards were removed, worth $13.50-; and in that partiular. consisted the alleged falsity of the affidavit.

The charter of the city provides that all claims against the city shall be audited by the common council, and it requires that before any account for labor or services shall be audited, it shall be made out in detail and verified by the affidavit of the claimant to the effect that the work charged for had been done, and that the charges are reasonable and just, etc.

Corrupt, false swearing to any material fact, in such affidavit, is declared to be perjury It is, also, provided that before any such bill shall be presented to the common council for audit, it must be certified by the head of the department ordering the same, and in case of repairs on the public schools, by the principal of the school where the same was done

The indictment charges that the defendant presented the bill so made out and verified by him to the head of the department and the principal of the school, for the purpose of obtaining their certificates, and that he obtained the certificate of the head of the department, annexed to the bill, but it does not aver that he presented the bill to the common council for any purpose, or that he delivered it to any person to be so presented. For aught that is alleged he made no further use of said verified bill after obtaining such certificate, and presenting it to the principal of the school, and did not part with its possession.

The question arises whether perjury can be assigned upon the affidavit, it not having been used by the defendant, or delivered by him to any person to be used in procuring an audit of the bill, by presenting it to the common council.

In Ortner v. The People (4 Hun, 323), an indictment for perjury upon an affidavit made for the purpose of obtaining audit of a claim against the city of Buffalo, was held fatally defective, it not averring that the affidavit was authorized by the charter, or that it was made for the purpose required thereby, or that the claim to which it was appended was ever presented to the council for audit. The averment in that case was that the defendant caused his bill to be presented to the engineer of the city, and that he made the affidavit before a clerk in the office of the engineer, who was a commissioner of deeds. But it was not averred that it was any part of the engineers duties to receive the bill, or that he, in fact, received it for any purpose connected with an audit.

It is contended by the appellant’s counsel that there are certain allegations in the indictment, in the present case, which distinguish it from Ortner's Case. Those allegations are (1) that the defendant made the affidavit for the purpose of procuring the audit and payment of the bill, and that he was required, by law and the charter, to make such .affidavit before the bill should be certified by the commissioner; (2) that, he presented said verified bill to the commissioner and the principal of the school for their respective, certificates, with the intention and for the purpose of procuring the audit and payment of the bill; and (3) that at the time when he made the affidavit, it was a material question whether he had rendered the services charged in the bill.

As we regard the case, the only material averment in these allegations is the averment that the law and the charter required that the verification should precede the certificates. The question whether the claimant had rendered the services charged in the bill was not material, except for the purpose of audit and payment. The fact that the claimant made the affidavit with the intention of presenting the bill so verified to the common council for audit, was unimportant, unless the intent was consummated by a presentation of the bill, or a parting with it for that purpose. If he abandoned the design and suppressed the affidavit, the offense was not complete unless, as the indictment avers, the affidavit was a pre-requisite to the certification, by the superintendent, of the department or the principal or the school. The averment upon that subís a legal conclusion, and its correctness is questioned by the demurrer. The indictment refers to no provision of law, in the charter or elsewhere, sustaining that position. The appellant’s counsel refers to none, in his printed brief or his argument. We are not aware of any such provision, and we think there is none. If there is any ordinance of the city, sustaining the averment, it should have been set out in the indictment.

In disposing of the case, therefore, we are to assume, as the result of the averments in the indictment, that the bill was not required by law to be verified until it was presented to the common council for its action; that neither the superintendent nor the principal of the school had authority to receive the bill for the common council, nor did they assume to do so; and that the making of the affidavit by the claimant, before presenting the bills to them for certification was a voluntary act on his part, which neither of them could require. In this view the case is clearly within the principle upon which the case of Ortner was decided.

The provisions of the Penal Code, referred to by the appellant’s counsel, do not aid him. The affidavit made by the defendant, in view of the only use to which it was put, was not one to which section 96 of that Code relates. It was neither “required by law,” nor necessary for the prosecution or defense of a private right, or for the ends of public justice,” nor was it one which, might “lawfully be administered ” by the officers or persons to whom it was presented. And by section 100 the affidavit was not complete, it not having been ‘ ‘ delivered by the defendant to any other person with intent that it be uttered or published as true.”

The case of The People v. Bowe (34 Hun, 528), cited by the appellant’s counsel, does not conflict with these views, as for aught that appears from the report of that case, and as is to be assumed, the account, as verified, was there delivered to the auditing board for its action. That being the case, the affidavit was one required by law, and was complete.

The result is that the judgment of the superior court should be affirmed, and the case remitted to that court.

Bradley, J., concurs.

Haight, J. (dissenting).

The indictment charges the defendant with having committed the crime of perjury, in falsely swearing to a claim or account against the city of Buffalo. It charges that the city is a municipal corporation, and that it is provided by its charter that the common council shall audit all claims against the city, but no unliquidated claim shall be received for audit unless made out in detail and accompanied by an affidavit that the claim and items and specifications thereof are, in all respects, just and true.

That before it shall be audited by the common council the claim shall be referred to the auditor of the city. That it is made the duty of the commissioner of public buildings to correctly audit and certify to the correctness of all bills and accounts and claims for services, material furnished and work performed for the city relating to the public buildings before such bills and accounts shall be presented to the council for audit and payment, and where the claim is for work performed or material furnished upon or about any public school building, that it shall also be the duty of the principal of the school to certify to the correctness of the contents of the bill. That the account was made out by the defendant and the alleged false affidavit attached, and that the same was delivered by him to one Robert H. Sliker, who was then the commissioner of public buildings of the city, for his certificate that the same was correct and true, for the purpose of presenting the same to the common council for audit and payment. That the commissioner of public buildings thereupon attached his certificate to that effect, and the defendant thereupon delivered the same to the principal of the public school No. 19 of the city of Buffalo, that being the school building in which the services stated in the bill was claimed to have been performed, for his certificate that the claim was correct and true, for the purpose and with the intention and design of presenting it for audit and payment by the common council.

The question presented by the demurrer is as to whether the delivery of the claim with the false affidavit attached, to the commissioner of public buildings or to the principal of public school No. 19 constituted a crime.

Under the charter, it is provided that every person who-shall wilfully and corruptly swear false in any affidavit, authorized by the charter, shall be deemed guilty of perjury. Under the provisions of the Penal Code, it is made-perjury for any person to wilfully and knowingly testify and declare, depose or certify falsely to any material matter in an affidavit required by law. Section 96.

The crime of perjury being covered by the provisions of the Penal Code, it doubtless supersedes the provision of the-charter, for only the penal provisions of charter acts which are not covered by the provisions of the Penal Code are-saved by the Code. People v. Jaehne, 3 N. Y. State Rep. 11-21.

The affidavit to the claim in question was required by law, for under the provisions of section T, title 3, of the-city charter, the claim was not only required to be made out in detail, but to be accompanied by an affidavit that, the claim and the items and specifications thereof were in all respects just and correct, and that no payment had been made and that no set-off exists except those stated. Section 100 of the Penal Code provides that the making of the deposition or certificate is deemed to be complete within the-provisions of this chapter from the time when it is delivered by the defendant to any other person with intent, that it be uttered or published as true.

By referring to the charter and ordinances we find that various steps are necessary in order to obtain payment of a claim against the city. As to the claim in question it was necessary for it to be made out in detail and verified by the claimant. It had to be audited and certified to be correct by the commissioner of public buildings. This was one step in the proceedings to obtain its final audit and payment.

Second. It had to be delivered to the principal of the-public school and audited and certified by him.

Third. It had to be filed with the clerk of the city and referred by the council to the city auditor for his approval and allowance before it could be directed to be paid by the council. All of these officers are charged with official duty in reference to the auditing and allowing of the bill. When therefore the defendant presented his claim with his false oath attached, to the commissioner of public buildings for his audit and certification with the intention of procuring payment of the claim by the common council of the city, it appears to me that it was the delivery to another person with the intent that it be uttered as true within the meaning of section 100 of the Penal Code, and that the crime became complete.

Again, after procuring this certificate of the commissioner of public buildings, the delivering of the bill with the false affidavit and certificate of the commissioner to the principal of public school No. 19 for the purpose of procuring his certificate with the intent of procuring payment of the false claim by the common council of the city; that the crime was again complete within the provisions of that section.

It is contended that the charter does not require the affidavit to be endorsed upon or attached to the claim until it is presented to the common council. The charter is silent as to the precise time at which the affidavit shall be made. It only provides that no unliquidated claim shall be received for audit unless made out in detail and verified so that the verification must precede the reception of it for audit. The ordinance of the city, however, authorized by its charter, provides that all accounts presented to the council for audit and allowance as claims against the city shall be made out as required by section 7, title 3, of the city charter, and the same shall be filed with the city clerk for presentation to the council.

Before filing such accounts the same shall be certified by the officer or person authorized by the council to create the liability, etc. Under this ordinance the account must be made out as required by section 7, title 3 of the charter before fifing with the city clerk. That section requires the account to be verified. If it is made out as required, it must therefore be verified. Before fifing such account the' same must be certified by the officer or persons authorized by the council t create the liability. In the case under consideration it must be certified by the commissioner of public buildings and the principal of the school. These officers cannot certify to the bill before it is made out. They are to certify to the bill before it is filed with the clerk.

It, therefore, appears to me that the fair construction of the provision is, that the account must be made out as required by section 7, title 3 of the charter, that is, made out and verified, and then before fifing with the clerk it must be certified to by these officers. To hold otherwise would require the officers to certify to the account when only made out in part, as required by such section. This would deprive them of the evidence that they have the right to have before them when they are called upon to officially audit and certify the bill.

There are .many public buildings in the city of Buffalo and it can hardly be presumed that the commissioner of public buildings can personally know of every nail or screw that may he used in their construction or repair. He is required to generally supervise the construction and repairs, and in that way he knows the character of the work performed and material furnished, the prices that should be paid, etc. But as to every one of the minor details that would not come under his personal observation he cannot be expected to possess or have accurate knowledge in reference thereto, and must rely to some extent upon the statements and representations of the person doing the work.

It appears to me to be wise and just and within the spirit and intent of the charter and ordinance that this officer has the right to have before him a verified account before he can be required to audit and certify to the same.

The question presented upon this demurrer is of considerable importance. The indictment is fully and carefully drawn, covering all of the charges, that it is possible to make in the case. If the demurrer is to be sustained, then no person can be convicted of the crime unless they have been successful in imposing upon all of the officers required to certify and audit the bill before its presentation to the c'ommon council. If the fraud is detected by either of these officers the criminal must go unpunished for the reason that his claim had not reached the custody of the common council.

These officers under the charter and ordinance are posted as sentinels to guard the city treasury. They are the officers, under whose supervision the work was performed and they are chiefly relied upon to detect any error or fraud. After it has passed their hands the audit by the council is chiefly formal and in most cases as a matter of course. The crime was morally complete when the defendant subscribed and swore to the false affidavit He then had committed the crime in his own heart.

When he subsequently delivered it to the commissioner of public buildings he uttered and published to that officer that the account was true; that it was sworn to by him. He presented it to that officer intending to deceive him as to the correctness of the account and to procure his certificate to aid in obtaining final payment, and this, it appears to me, made the crime complete within the provisions of the Code already referred to.  