126 N.Y.S. 112 | N.Y. App. Div. | 1910
Lead Opinion
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
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
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
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 pro
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
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.”
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)
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.
Concurrence Opinion
(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 obliga
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.