Ries v. Dusanenko

105 A.D.2d 749 | N.Y. App. Div. | 1984

In a proceeding pursuant to CPLR article 78, inter alia, to compel Theodore R. Dusanenko to make payment to petitioner in accord with town board resolutions, petitioner Margaretann Ries appeals from so much of a judgment of the Supreme Court, Rock-land County (Burchell, J.), dated October 11,1983, as dismissed her claim for attorneys’ fees. Theodore R. Dusanenko cross-appeals from so much of the same judgment as directed him to make payment in the amount of $1,130.

Judgment modified, on the law, by deleting the provision directing Theodore Dusanenko to make payment to petitioner and substituting therefor a provision dismissing the proceeding in its entirety. As so modified, judgment affirmed, without costs or disbursements.

Mandamus will not issue to compel a town supervisor to make payment on a claim illegal on its face, even where the claim has been audited and allowed by a town board (see Matter of Poucher v Berry, 249 NY 16; 16 Opns St Comp, 1960, p 352). Section 9-1 (subd A, par [1]) of the Code of the Town of Clarkstown clearly prohibits any town employee from performing services as an independent contractor for any town agency. Petitioner had notice of this prohibition. Any special compensation paid to her for performing such services would constitute an illegal claim against the town. Therefore, Dusanenko rightfully refused to make payment.

Accordingly, the proceeding is dismissed in its entirety. Mollen, P. J., Titone, Bracken and Rubin, JJ., concur.