144 N.Y.S. 552 | N.Y. App. Div. | 1913
Lead Opinion
The complaint alleges that the plaintiff is a domestic corporation created for the purpose of taking into its care children between the ages of seven and sixteen committed to it by judicial and other officers; that the defendant is a municipal corporation; that between the 26th of October, 1906, and September 1, 1911, plaintiff, at the special instance and request of the defendant, rendered certain services and furnished materials, the reasonable value of which defendant agreed to pay, in and for the care, maintenance, education and support of thirteen minor children duly committed to it as juvenile delinquents; for three children committed as destitute; that the services performed and materials furnished were reasonably worth $3,967.11, which, though duly demanded, has not been paid. ‘£ Sixth. Plaintiff further alleges that heretofore and on or before the 22nd day of November, A. D. 1911, it duly presented in writing to the Board of Supervisors of said defendant, and demanded payment of its claim, a copy of which is hereto annexed and marked Schedules A and B, made out in items and accompanied with an affidavit by its President that the items in such accounts were correct, and that the disbursements and services charged therein have been in fact made and rendered, and that no part of the amount claimed had been paid or satisfied, and defendant, by its said Board of Supervisors did, as plaintiff is informed and believes, on or about the-22nd day of January, A. D. 1912, wholly disallow said claim and refuses to pay same.”
To this complaint the defendant demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action. Whereupon plaintiff moved for judgment on the pleadings, which motion having been granted, defendant appeals.
The appellant contends that the audit of the board of supervisors was conclusive on the plaintiff; that its only remedy was by certiorari to review the determination of the board; that no independent action will lie.
People ex rel. Goodwin v. Coler (48 App. Div. 492) was an application for a writ of mandamus requiring the comptroller óf the city of New York to audit and adjust relator’s claim growing out of an obligation with the county of Richmond before consolidation. Willard Bartlett, J., said: “The learned judge at Special Term * * * thought that an action should be brought upon the claim, and, therefore, denied the application for a writ of mandamus. It does not seem to us clear, however, that the relator could at this time maintain a suit at law upon his claim. That claim constituted a county charge. ‘ From the earliest period in the history of the State to the present,’ said Cullen, J., in Albrecht v. County of Queens (84 Hun, 399), ‘ it has been necessary to present claims against the county to the board of supervisors for audit. With some unimportant exceptions, dependent on special statutes, or where the claim was liquidated by the existence of a county obligation for a specific sum, suits could not be maintained against the county for claims or county charges.’ * * * ' In the case of Kennedy v. County of Queens (47 App. Div. 250), recently decided by this court, it was held that this rule, to the effect that a county charge is not the subject of an action at law against a county, did not apply to a claim which had been presented to the board of supervisors and had been by them formally rejected and repudiated as an obligation of the county. In the present case, however, the relator’s claim has never been rejected. * * The Kennedy case, therefore, is not an authority for the maintenance of an action at law to collect this claim.”
In People ex rel. Martin v. Westchester County (53 App. Div. 339), certiorari to review the action of the board of supervisors in audit of relator’s claim and account, Jenks, J., said: “ The contention of the appellants that the certiorari proceedings are void ah initio inasmuch as the sole remedy is an action against the county under the joint authority of People ex rel. Gorr v. Schoonover (43 App. Div. 539) and Kennedy v. County of Queens (47 id. 250) cannot prevail. In People ex rel. Goodwin v. Coler (48 App. Div. 492) we held that where the relator’s
In Bank of Staten Island v. City of New York (68 App. Div. 231; affd. without opinion, 174 N. Y. 519) a claim had been submitted to a board of supervisors and had been allowed in part and for a definite amount. The court held that this was a judicial determination and binding upon the city in an action against it to recover upon the amount allowed upon the audit by the supervisors of Richmond county, Mr. Justice Woodward saying: ‘c The rule is well settled in this State that where a matter has been submitted to an authorized judicial tribunal, its decision thereon is final between the parties until it has been reversed, set aside or vacated; and the rule of res adjudicata applies to all judicial determinations whether in actions, or in summary or special proceedings or by judicial officers, in matters properly submitted for their determination.”
Foy v. County of Westchester (168 N. Y. 180) was an appeal from a judgment affirming a judgment in favor of defendant dismissing the complaint. The action was brought to recover for services performed by a physician in making certain post mortem examinations by direction of a coroner in the county of Westchester. The court said : “ The statute makes the compensation a county charge. The complaint alleges that £ the defendant audited and allowed for each of said post mortem examinations the sum of ten dollars,’ from which we assume that the plaintiff presented his claim to the board of supervisors, which made the audit. The board had jurisdiction to audit the same, and its audit was final, not having been reviewed or reversed upon certiorari, and was payable at the amount audited by the county treasurer upon plaintiff’s presentation of the proper warrant or certificate of the board of supervisors. It thus appears that the defendant is not charged with a default in legal duty. The allegation that the amount of the audit £ is not the value of his services ’ may state a case for a review of the audit by certiorari, but not a cause of action.”
From these cases it appears that, as the law now is, a county is a municipal corporation and may sue or be sued; that there
While the Kennedy case does not seem to have been directly overruled, I think it has been limited so that the effect is that a claimant has an option, but having once exercised it, such right is exhausted. There is no logical distinction between the entire and the partial rejection of a claim. “To audit is to hear, to examine an account, and in its broader sense it includes its adjustment or allowance, disallowance or rejection.” (People ex rel. Myers v. Barnes, 114 N. Y. 317, 323, citing People ex rel. Brown v. Board of Apportionment, 52 N. Y. 227.) In either case .there is a judicial determination, and hence the same rule as to further procedure should apply.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for judgment on the pleadings denied, with ten dollars costs.
Ingraham, P. J., Scott and Hotchkiss, JJ., concurred; Dowling, J., dissented.
Dissenting Opinion
I dissent on the authority of Kennedy v. County of Queens (47 App. Div. 250).
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.