70 N.Y. 454 | NY | 1877
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *456
It is admitted by the pleadings that the claim of plaintiffs was duly audited and allowed by the board of supervisors of the county of New York, and that it was a county charge. There is no allegation in the answer that such audit and allowance was fraudulent or irregular, or that the charge was excessive. By the act chapter 304 of the laws of 1874, the city and county governments were consolidated, and all charges against the county were made charges against the city, and thus the city became liable to pay the plaintiffs. But before the city officers could pay, the voucher for the claim under the act, chapter 335 of the laws of 1873, must have been "examined and allowed by the auditor, and approved by the comptroller." Such examination, allowance, and approval are a condition precedent to any suit against the city. (People ex rel. Brown v. Green, 2 N.Y. Sup. Ct. R. [T. C.], 18; S.C.,
It being conceded that this claim was a proper charge against the county, and that it was duly audited and allowed by the board of supervisors, there was nothing for the city auditor to do but to examine the voucher, and see that it was in proper form. He had no right to revise the action of the supervisors, and re-adjust the claim. If he found the voucher proper and regular, it was his duty to audit and allow, and the duty of the comptroller to approve and draw his warrant.
It is entirely clear that the auditor and comptroller were both satisfied with the voucher for plaintiffs' claim. The *458 auditor examined and allowed the voucher, but attempted to cut down the claim. The effect of his certificate to the comptroller is that he found the voucher all right, but that he disapproved of the amount allowed by the supervisors. He had no right to make the reduction, and his action in doing so can have no effect. That the comptroller approved of the voucher is conclusively shown by the fact, that he took and filed the voucher in his department, and paid nearly the whole sum certified by the auditor, and has offered to pay the balance, making no objection whatever to the voucher.
The plaintiffs should, therefore, have recovered, unless barred by the only defense set up in the answer, which will now be considered. After plaintiffs' claim was audited and allowed by the supervisors, a judgment was obtained against them, and in proceedings supplementary to execution under such judgment, a receiver of their property was appointed. Such receiver acted, took possession of the voucher for plaintiffs' claim, and, upon refusal of the auditor to examine and allow the voucher, obtained a peremptory writ of mandamus commanding him forthwith to examine and allow it. He made the examination and allowance, and the reduction as above mentioned, and, long after the commencement of this suit, made his return to the court stating such action in obedience to the writ, and nothing more was done in the mandamus proceedings. These proceedings are claimed by the defendants to constitute an adjudication that only the sum allowed by the auditor was due upon plaintiffs' claim, and that they are estopped thereby. But there was no adjudication and no judgment whatever. There was no judicial action except the order that the writ issue, and that writ commanded the auditor to examine and allow the the voucher; not to examine and reduce the claim, or revise the action of the supervisors. The action of the auditor was not judicial, and neither bound nor estopped the receiver or the plaintiffs. Hence there was no judicial action of any kind reducing plaintiffs' claim.
It is true that the auditor might have been compelled to *459 have made a different return by omitting therefrom all that pertained to the reduction of the claim. The receiver had no interest to compel him as the amount he desired to realize to pay the judgment under which he was appointed, and the expenses was only about $2,400; and there was no necessity to compel him, so long as it appeared clearly that he had, in substance and effect, examined and allowed the voucher.
After the receiver had realized the sum which he desired, he was discharged, and the plaintiffs became again reinvested with their property, and then they were entitled to recover the full amount of the balance of their claim as audited and allowed by the supervisors deducting a payment subsequently made on their account.
It is quite probable the plaintiffs' claim is exorbitant. It may be dishonest and fraudulent, but the law must be administered in all cases. There is no power in the city auditor, or in the courts, upon any facts which appear in this case to revise the action of the supervisors.
The complaint was therefore improperly dismissed, and there must be a new trial.
The judgment must be reversed and new trial ordered.
All concur, except RAPALLO, J., absent.
Judgment reversed.
