In re Lanehart

52 N.Y.S. 671 | N.Y. App. Div. | 1898

Pee Curiam :

It is well settled that where a claim is presented to a hoard of supervisors for audit, which the board is required by law to allow at the sum presented, and its audit is refused, or it is arbitrarily reduced, mandamus is the proper remedy. (People v. Supervisors of Delaware Co., 45 N. Y. 196 ; People ex rel. Morrison v. Supervisors, 56 Hun, 489.) But where the claim presented vests the auditing body with authority to exercise judgment, and requires a determination based upon conflicting testimony and inferences arising therefrom, whatever right of review exists must be by certiorari, and mandamus is improper. (People ex rel. Myers v. Barnes, 114 N. Y. 317.) In the present case, assuming, but not deciding, that the claim presented was a proper charge against the county of Queens, yet it clearly appears that the amount to be paid for the service rendered was not a sum agreed upon between the parties, either express or implied ; consequently the measure of compensation for the service was what the same was reasonably worth. (People v. Supervisors of Delaware Co., supra.) The board of supervisors was, therefore, called Upon to pass upon the claim, and reject or allow it, in the exercise of judgment and discretion, and their determination will not be reviewed by a court upon certiorari, unless it appears to have been clearly erroneous and against the weight of the testimony upon which the board acted. In the present case it appeared that the only testimony before the board in support of the claim for its full amount was the affidavit of the claimant, supported by no other proof. The statement contained therein was the statement of an interested witness, and is governed by the same rules as would be applicable in consideration of his testimony by a court or jury, and being so interested the board were not compelled to accept his statement, although uncontradicted. (Elwood v. Western Union Tel. Co., 45 N. Y. 549 ; Canajoharie National Bank v. Diefendorf, 123 id. 191.) The board were, therefore, 'authorized to act upon their knowledge of such question, and award such sum as in their judgment seemed proper compensation for the service rendered, and this court would have no authority to review such action.

The motion for the writ was, therefore, properly denied, and the order should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.