Adams v. Town of Wheatfield

46 A.D. 466 | N.Y. App. Div. | 1899

Smith, J.:

Upon the appeal by the taxpayers from the audit of plaintiff’s claim by the town board, the supervisors were required to audit anew his account. The statute provides that “ Such part of such accounts as the board of supervisors shall allow, shall be assessed and collected the same as other town charges.” (The Town Law, Laws of 1890,- chap. 569, § 163.) The appellant maintains that the act of the board upon the twenty-second of December in directing that this account be included in the tax roll constituted an andit of the claim. The claim of the defendant, however, is: First, that to include this item in the tax roll did not constitute an audit of the claimsecondly., if this may be deemed to constitute an audit of the claim, the board lias reconsidered and rescinded the same by the adoption of the report of the committee upon January twentieth, which report provided for the disallowance of this claim..

We think that the account was audited when it was included in the tax roll. The board was only authorized under the statute to include in that tax, roll'such part of that account as they allowed. That audit was made without investigation and was an irregular audit. Until corrected, however, it was a binding audit.

Upon November twenty-third the accounts of the plaintiff were sent to a committee for investigation. ■ -Upon January twentieth' that committee reported to disallow this account for which this action is brought. It is true that no formal resolution was passed rescinding the audit of December twenty-second. The adoption, however, of the report of the committee that this account be disallowed of itself operated as a rescission of that audit of December twenty-second by the board and' as a reaudit and disallowance of the plaintiff’s claim. After such disallowance the collector, although the moneys had been raised- therefor, had no authority to pay the same to the plaintiff, and the plaintiff has no cause of action against the town therefor.

It is contended by the appellant: First, that, after tlie appeal taken by the taxpayers from, the audit by the town board of the plaintiff’s account, the . town clerk'did not transmit the account to the board of supervisors -to be audited and allowed by them- until December sixth; that the resolution sending to the committee on constables’ accounts the accounts of the plaintiff for investigation Avas passed upon November tAventy-third; that this account, therefore, Avas not before the committee and they had no power to act thereupon. ■ That this account Avas investigated by that committee is not disputed. That the plaintiff and his attorney appeared before the committee upon that investigation is not questioned. The-plaintiff -has acquiesced in the consideration by this' committee of this account. After the report disalloAving the account, the objection comes too late that it Avas not properly before them for - consideration.

It is further insisted by the appellant that the mere adoption by the board of supervisors of the report of a committee does not eonstitnte an audit or disallowance of the .plaintiff’s claim. That it was understood to be such an audit and disallowance by the supervisors themselves we have no doubt. Their intention is the ultimate fact to be ascertained. That this ivas a legal expression of their intention would seem clear, both upon principle and authority. In People ex rel. Masterson v. Gallup (12 Abb. N. C. 74) it is held that legislation may be in the form of a resolution reported by a committee and adopted.by a vote of'the board in passing upon the report. We .are satisfied that the board has expressed effectm ally its intention to reaudit and disallow the plaintiff’s account.

Tiie appellant further urges that after having once audited this account the board is without power to reconsider its action and reaudit the same. This objection would seem to be answered by the authority of The People ex rel. Hotchkiss v. The Board of Supervisors of Broome County (65 N. Y. 222). It is there held that “ A board of supervisors has power to rescind a resolution auditing and allowing a claim against the county upon discovery of mistake or error.”

It is again objected b.7 the appellant that the adoption of the report of this committee was illegal as a reaudit because the evidence taken before the committee was not before the board, and that it could not, therefore, legally act upon the report of the committee. Whether or not this action of the board constituted a lawful audit and disallowance of the plaintiff’s claim, it operated as a rescission of its action in allowing1' the claim theretofore. The reaudit was just as regular and just as valid as was the original audit when this account was included in the tax roll. It was so included without investigation or examination while an appeal was pending. We have held that it nevertheless constituted an audit until it was corrected either by the order of the court or voluntarily. By the same reasoning the final action of the hoard in adopting the report of this committee constitutes a reaudit and disallowance of this claim. If the reandit were irreg’ular'it can be corrected by a writ of mandamus to compel them properly to reaudit the claim.

It is once more urged that if this can be held to be a reaudit, it is illegal as a trial of the title to an office collaterally. But the learned referee has pointed out that the correction of such an error is through certiorari and not by action.

These views render unnecessary a discussion of the other, questions raised hy counsel and lead to an affirmance of the judgment 'entered upon the report of- the referee.

All concurred, except McLennan, J., who dissented.

Judgment affirmed, with costs.