62 N.Y.S. 964 | N.Y. App. Div. | 1900
Before the formation of the present city of New York a coroner in the county of Eichmond was empowered to employ not more than two competent surgeons to make post mortepro examinations and dissections (Chap. 833, Laws of 1873, as amd. by chap. 535,
In answer to the affidavit of the relator, upon which the application was based, which stated the facts substantially as hereinbefore set forth, the corporation counsel submitted an affidavit by an examiner of claims in his office, stating that he had made an examination of some of the items on the relator’s bill and that he had secured affidavits in regard -to three of them which he described as being annexed. Ho such affidavits were in fact annexed or submitted to the court at Special Term or appear in the printed apjjeal book. The examiner further stated that while he was unable to give- any opinion in regard to the amount due, if any, to the claimant, yet from information which he had received in the course of his investigation he found a portion of said claim at least to be false and fraudulent. This attack upon the good faith of the relator and the character of his claim ought not to have been inserted in the opposing affidavit without a specific reference to the evidence in support of the allegation which was confessedly not within the personal knowledge of the affiant. This examiner’s affidavit cannot be
The learned judge at Special Term, though impressed by the careful and able brief of counsel for the applicant, 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.” (See, also, Taylor v. Mayor, 82 N. Y. 11, 22.) 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, either by the board of supervisors of Eichmond county or by the comptroller, who is held to be the successor of that body as the auditing authority of claims, against the former county of Eichmond. (People ex rel. Beck v. Coler, supra; MacDonald v. City of New York, 42 App. Div. 263.) The Kennedy "case, therefore, is not an authority for the maintenance .of an action at law to collect this claim.
It is furthermore to be observed that the relator does not seek to. collect his claim in this proceedings but desires merely to compel the comptroller to audit it—that is to say, pass upon it one way or the other — and allow ór disallow the several items of which it is. composed. He is clearly entitled to ■ relief to this extent. The remedies which will be available to him hereafter for the purpose of
Order reversed, with ten dollars costs and disbursements, and application granted.
All concurred, Goodrich, P. J., in result.
Order reversed, with ten dollars costs and disbursements, and application granted.