63 N.Y.S. 317 | N.Y. App. Div. | 1900
The order granting the writ seems to have been made upon the theory that no motion to reconsider the action of the board on the 22d of November, 1899, was made within three days after that time, and that, therefore, the board, under its rules, lost jurisdiction of the matter and had no power to review their action in auditing the accounts.
It will be observed that under the rule adopted by the board as to reconsideration of votes the motion for that purpose must be made within three days upon which sessions of the board shall be held subsequent to such vote having been taken. The .action of the board on the twelfth of December was within such three days. Between the twenty-second of November and the twelfth of December there was only one day upon which there was a session of the board, such day being December eleventh.
But it is said that the action of the board on the twelfth of December was not a motion for the reconsideration of the vote upon the audit on the twenty-second of November. It was, however, that in substance. The bills were referred to a named committee for a renewed consideration and for the purpose of obtaining further evidence in relation thereto and with the aid of counsel. The relator was directed to appear before the committee. The resolution was based on the statement that numerous items were impropere
The action of December twelfth should, we think, be deemed a reconsideration within the meaning of the rule. The mover was one who voted with the majority on the prior vote, as that was unanimous. Nor does there appear to have been any objection or dissent upon the adoption of the resolutions of December twelfth.
The board had, we think, full jurisdiction of the matter upon December twelfth (People ex rel. Hotckiss v. Supervisors, 65 N. Y. 222), and no good reason is apparent for interrupting their continued investigation and awarding to the relator certificates under the prior action of the board. The board had never directed their delivery.and the business was unfinished;
The fact that the clerk, in pursuance of the command of the writ, has delivered to the relator the certificates does not deprive the board of its right to relief from the adjudication that its action has been illegal. ’ There seem to he many items in the accounts that .are improper under the views of this court, as laid down in People ex rel. Caldwell v. Supervisors (45 App. Div. 42), and the board has a right to have its future action untrammeled by the adjudication appealed from and free from any burden upon its right to ■further investigate. The appeal from an order granting a peremptory writ may be taken as from a final order. (Code Civ. Proc. § 2087.)
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion for peremptory writ of mandamus denied, with ten dollars -costs.
