People ex rel. McGovern v. Board of Trustees

37 N.Y.S. 535 | N.Y. App. Div. | 1896

Follett, J.:

The relator having elected to take a peremptory instead of an alternative Writ of mandamus, all the statements of fact contained in the defendant’s opposing affidavits must be taken as true; and among other facts it is stated that the relator’s services were not - reasonably worth more than the sum of $600 allowed by the trustees. It is provided by section 20 of chapter 661 of the Laws of 1893 (the Public Health Law) that every village board of health shall have power to appoint a competent physician, not a member of the board, to be the health officer of the Village.

By section 21 it is provided : “ Every such local board shall prescribe the -duties and' powers of the local health officer, who shall be its chief executive officer, and direct him in the performance of his duties and fix his compensation.” Shortly after the appointment of the relator to the position of health officer his compensation for attendance upon cases of small pox was fixed by the board at a meeting at which he was present. The bill which he presents for his services is not made out pursuant to the rate of compensation then fixed. But he makes an independent claim for his services, not as health officer, but as a physician for the services which he rendered in this case. The board of health is given no power to fix the compensation of any person for services rendered,' except the services of its health officer; and when the relator entered upon the discharge of duties other than those imposed upon him as health officer, his compensation is to be fixed and allowed under other sections of the statute.

By section 1 of title 5 of chapter 119 of the Laws of 1889 (the charter of the village of Penn Tan) it is provided : “ The trustees shall have the auditing of all accounts and claims against the village, and no account or claim shall be paid unless allowed by them or after judgment obtained thereon. * * * The claimant may be examined on oath by the trustees in relation to said claim, and the items thereof, * * * Nothing herein shall be construed as preventing the trustees from disallowing any account or claim in whole or in part, when so made out and verified, nor from requiring other or further evidence of the correctness and reasonableness thereof.”

Section 30 of article 2 of the Public Health Law (Chap. 661, Laws 1893) provides: “All expenses incurred by any local board of health in the performance of the duties imposed upon it, or its members, by law, shall be a charge upon the municipality, and shall be audited, levied, collected and paid in the same manner as the other charges of or upon the municipality are audited, levied, collected and paid.”

By the sections above quoted the power is conferred upon the board of trustees of the village of Penn Tan to audit and allow all claims against the village incurred by the board of health, except the compensation of the health officer as such. The relator in this case makes no claim in the bill presented, and which he seeks to have the defendants compulsively compelled to pay, for his services as health officer. His claim is that he acted solely in the capacity of a physician. Nowhere in his papers does he assert a claim in his official capacity. That he has elected to make a distinction between his claim .as a physician and as health officer is further emphasized by the fact that he presentéd a bill for services from' April' 1,, 1894, to March 20, 1895, as health officer, made but in items pursuant to. the rate of compensation fixed by the board of health; The povyer of the board of trustees to audit the claim of the relator'confers authority upon them to determine whether the claim was just and legal in whole or in part. (People ex rel. Dinsmore v. Gilroy, 82 Hun, 500; affd.,145 N. Y. 596.)

We are of opinion that the board of trustees of the village of Penn Tan was solely authorized to audit the-claim of the relator, and that, they' having done so, and fixed an amount which they deemed to be reasonable, a peremptory writ of mandamus ought not to havé been granted compelling them to pay the claim as made out by the relator.

The order should be reversed,, with hosts.

All concurred.

•Order, reversed, with costs and disbursements, and writ dismissed, with fifty dollars costs in the court below.