19 N.Y.S. 625 | N.Y. Sup. Ct. | 1892
This is an appeal from a judgment awarding a peremptory mandamus against the defendants as the board of town auditors of the town of Forestburgh, directing them to audit and allow the sum of $89 for services rendered and disbursements made by the relator as a commissioner of highways, and also the sum of $107.20, being the amount of a judgment rendered against the relator in favor of one James L. Stewart for professional services as a lawyer, alleged to have been rendered by the said Stewart in and about the official business of the relator as commissioner of highways of the town of Forestburgh. At the spring election in 1885 one commissioner of highways was to be elected for the town of Forestburgh. The term of office was three years. At such election the relator and Benjamin Case were opposing candidates, and the only persons voted for at such election for said office. The ballots cast for said candidates were printed as follows:
“For Commissioner of Highways, (2 years.)
“Michael Lane.
“For Commissioner of Highways, (3 years.)
“Benjamin Case.”
A majority of the votes cast at such election were cast for the relator, and the canvassers declared that he had been elected commissioner of highways for said town. At the annual town meeting held in said town in March,
While the board of town auditors erred in the respect indicated, still I do not think a peremptory mandamus should issue against the defendants compelling them to audit and allow the claims in question. The relator has not established, so far as appears from the record before us, the absolute liability of the town for the whole or part of any one of the claims presented to the board. As to the judgment against him for legal services, it does not appear what those legal services consisted of, whether they were properly or necessarily rendered for him in the discharge of his duties as a commissioner of highways or not. The mere fact that there is a judgment against him, or that one against him has been paid by him, does not render it the absolute duty of the town to pay him the amount of it. So far as appears from the case before us, the defendants have not passed upon anything except the question as to whether the relator was a commissioner of highways during the time of the rendition of the services claimed for. The board of town auditors has the right, and it is their duty, to examine into the propriety and' necessity of the employment of counsel in the discharge of his duties by the relator as commissioner of highways. To issue a peremptory mandamus