89 N.Y.S. 826 | N.Y. App. Div. | 1904
■This is certiorari to review proceedings, decisions and actions of a board of town auditors upon a claim. The return shows that-on December 2, 1903, this claim was taken up for .consideration, and that, with the facts and matters before it, “ above referred to, the Board did not regard the information sufficient to warrant them in deciding that the amount of bill presented was a proper charge against the Town of Hempstead,” and that the bill was disallowed. But the return also shows that “ subsequently, and after being advised by counsel, and thinking that possibly the relator should have had further'opportunity to present any facts or evidence in relation to his claim on the 21st day of December, 1903, the Board reconsidered its action in disallowing the claim and adjourned to December 24th, in the afternoon, to give the relator opportunity to appear.”
I think it quite clear that this board, being the same, had the power to reconsider the action of December 2, 1903. (People v. Stocking, 50 Barb. 573, 583; cited in Osterhoudt v. Rigney, 98 N. Y. 222, 234; People ex rel. Hotchkiss v. Supervisors, 65 id. 222; Adams v. Town of Wheatfield, 46 App. Div. 466.) The return also states that the board met on the 24th day of December,' 1903, and decided to consider the claim Upon a corrected bill on December 28, 1903, and that on that day it met and took action thereon. We cannot, however, consider as within the return any proceedings subsequent to December 11, 1903, the day of the issue and the service of this writ. (6 Cyc. 805, 806, .citing Commissioners Court of Lowndes County v. Hearne, 59 Ala. 371; Bee v. Seaman, 36 W. Va. 381.) Nevertheless, we are apprised that the only action which can be brought up by this writ is not in any ¡sense the final action of the board upon this claim, but that such action was supplanted by the subsequent proceedings indicated.
■ The action of December 2, 1903, then, presents but a moot question, and one that neither deserves nor requires consideration, while the subsequent and final action of the board cannot be brought up by the present writ, for the reasons stated. We are constrained to dismiss this writ, without costs and without prejudice.
The writ should be dismissed, without costs. 1
All concurred.
Writ dismissed, without costs.
