37 N.Y.S. 864 | N.Y. App. Div. | 1896
The board of street commissioners in the village of Saratoga Springs, learning that the receiver of taxes of such village had paid out from a certain fund, raised on its requisition and standing bo its credit upon his books, the sum of about $6,000 upon a claim which had been presented to it, and the allowance of which was then disputed, employed the relator as an attorney to take legal measures to protect its interests in the matter. The relator rendered service under such employment and presented a bill for the same to the board. The board allowed the bill, and, under the item of “ current expenses,” procured the amount to be placed in the village tax budget for the year 1895. The sum was collected from the taxpayers and placed to the board’s credit on the books of the receiver of taxes. Subsequently it issued to the relator a warrant in due form directing such receiver to pay the amount to the relator. The receiver refused to make such payment. A peremptory writ of mandamus was subsequently issued by the Special Term requiring the receiver to make such payment, and from the order allowing such writ this appeal is brought.
It is manifest that if the board of street commissioners had no authority to employ an attorney at the expense of the village the payment of his services would not be a legal charge, and could not he made a proper item of their “ current expenses.” The first question that presents itself, therefore, is whether such claim of authority on their part is a correct one. It is claimed by the relator that the board which so employed him was vested by the statute with the care, management and control of all the property appertaining to the construction, maintaining, caring for and lighting the-
We conclude that the board of street commissioners had no ■authority to employ the relator, and the expense for so doing was :not a proper item of their “ current expenses.” It follows that the receiver of taxes was right in refusing to pay the warrant drawn •against him in favor of the relator, and that the wrrit requiring him to do so was erroneously issued.
It is further claimed that the receiver is not a party aggrieved by the order, and cannot, therefore, institute an appeal therefrom. We think he is a party aggrieved within the meaning of section 1294 of the Code of Civil Procedure. The principle involved seems to be decided in People ex rel. Burnham v. Jones (110 N. Y. 509). It also appears that, upon the presentation to him of the writ, the respondent promptly paid to the relator the amount claimed by him. Under the provisions of the Code of Civil Procedure (§ 1323) we are authorized to order restitution of that amount; and, inasmuch as we conclude the relator is not lawfully entitled to it, we have but one duty to perform in that regard ; manifestly ve must ■direct its restitution to the village treasurer. The order appealed from is reversed, with costs and disbursements, and an order must be entered directing the relator to refund to the receiver of taxes ■of the village of Saratoga Springs the amount paid by him in obedience to the writ issued therefor.
All concurred.
Order reversed, with ten dollars costs and disbursements, and restitution ordered.