144 N.E. 629 | NY | 1924
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The town board of the town of Brighton established a district for the construction of a sewer system (Town Law [Cons. Laws, ch. 62], § 230), and appointed sewer commissioners (Town Law, §
In this situation, the contractor applied for a mandamus directed to the board and the commissioners. He joined with him as relator the Traders' National Bank of Rochester, which held an assignment of his claim as collateral security. The prayer of the petition is that the claim be paid forthwith out of moneys, the proceeds of bonds, alleged to be on hand and available therefor; and, if the money be not on hand, that the commissioners audit the demand and serve upon the town board the notice requisite under the statute to cause the money to be raised. There is a final prayer that both commissioners and board be required to do such other acts and things as may be essential to secure to the relators the payment of the claim in full. On this petition there was issued an alternative mandamus order to which the respondents made return contesting the relators' claim and disowning liability. On the eve of trial, they procured against the protest of their adversaries an order which turned the alternative mandamus into a peremptory one, but with a scope and operation narrower by far than the relief prayed for in the petition. The commissioners were directed to audit the claim upon the merits, but they were left free upon such audit to approve or to reject. Neither against them nor against the board does the order embody the declaration of a duty to pay. Whether such a duty may be declared in this proceeding, is the question to be answered. If sewer commissioners, in acting upon a demand for payment, are invested by statute with quasi-judicial functions, mandamus, though competent to compel them to act, is not competent to prescribe the manner of their acting (People ex rel. McCabe v.Matthies,
The courts below classified the functions as judicial. They did so believing that two opinions of this court dictated that conclusion (Holroyd v. Town of Indian Lake,
We think the functions of these commissioners are administrative, not judicial (People ex rel. Corwin v.Walter,
The respondents point to instances in which officers or agents of the same civil subdivision which has entered into a contract or assumed an obligation, have been invested with judicial functions to inquire whether the contract has been performed or the obligation discharged. Such is the position of the board of supervisors of a county in respect of claims submitted to them for audit (N.Y. Catholic Protectory v. Rockland County,
The prayer of the petition is subject to criticism. The relators themselves have asked that in certain contingencies there shall be an audit of their claim. If the prayer is read as a whole, we see that "audit" is used loosely as equivalent to authentication or approval. Coupled with the prayer for audit is the prayer that payment be directed. We find nothing justifying the conclusion that the relators by the form of their petition have thrown their rights away (Civ. Prac. Act, § 111).
The order of the Appellate Division and that of the Special Term should be reversed, with costs in all courts, and the respondents' motion denied, with costs.
POUND, CRANE, ANDREWS and LEHMAN, JJ., concur; HISCOCK, Ch. J., and McLAUGHLIN, J., dissent.
Orders reversed, etc.