69 N.Y.S. 608 | N.Y. Sup. Ct. | 1901
(1) I do not see how the objection that the plaintiff cannot maintain an action to collect his claim (if it be valid), but that he must collect it by presenting it for audit, and compelling its audit by mandamus, if necessary, can be' good. Why should that be so % The defendant, as is the case with cities and villages generally, is given the power and means of auditing claims presented against it. This is essential in order that it may safely pay such claims. But since when has the suggestion arisen that a claimant is compelled to resort to such audit in order to- collect his
I do not understand that the case of Goodwin (48 App. Div. 492) must be taken as doing away with the foregoing long established principles, but rather that it is a case apart, standing on its own peculiar circumstances, and not applicable to other cases. The idea that prevailed there seems from the opinion to have been that as the claim could have been collected of the county of Richmond only by audit of its board of supervisors, it could therefore by analogy be collected of the city of New York only by audit of the comptroller; and yet such opinion at the close recognizes that such audit would be an empty formality binding no one. I am not sure I understand this. Moreover, according to the decision in Kennedy v. County of Queens it could have been collected against the county of Richmond without audit by the supervisors, but that decision does not seem to have been accepted.
That the charter requires claims to be presented to the comptroller, and that a certain length of time for audit and payment must then elapse, as a condition precedent to a right to bring action thereon against the city, is quite another thing. That does not give any right to compel an audit; and except for such provision a claimant would not have to present his claim for audit at all.
The decision in the Matter of Freel (148 N. Y. 165) in no way conflicts with the foregoing; nor can if even seem to if it be un
An application like that in the Freel case, based as it was on the fact that the claim had been audited and allowed by the city auditor, and that such audit bound the city, could not succeed under" the present charter of the city of New York, which provides that the audit of a claim against the city (i. e., by the comptroller) shall not have “ the binding effect of á judgment or decree ” (§149).
The recent decision in People ex rel. Treat v. Coler (56 App. Div. 459) by a seriously divided court seems as reported to allow a writ of mandamus to compel the comptroller to pay a claim" which had not been audited at all. It may well be doubted that that was the true state of the case. That the disbursing officer of a municipal corporation can be required to pay a claim which has been adjudicated and fixed by an audit or a judgment of a court binding on him, is plain enough; but how can he be required to pay a claim which has not been audited or reduced to judgment ? And in the case of the city of New York, as has been pointed out, payment cannot even be compelled on an audit, the charter carefully prescribing that it shall not be binding, and evidently intending that the comptroller may notwithstanding it send the claimant to an action at law.
The present case is not analogous to" that of the ordinary run of claims against counties and towns. They formerly could not be sued in this" state except where the suit or action was specifically
(2) But the contract with the plaintiff had no validity after the year 1897. The charter of the defendant was passed May 4, 1897, to go into effect January 1, 1898. ' The power of the board of supervisors of Queens county over the-roads, of. the.;county was thereby limited to the-period, from May 4, 1897, to January 1, 1898. The contract here in question, made July 6, 1897, was therefore invalid except for the remainder of the year 1897 (Hendrickson v. City of New York, 160 N. Y. 144). It is claimed that the opinion in the Court of Appeals in the case cited puts the invalidity of the contract there principally on the ground of fraud by the officials in the making of it. This seems to be so; and the opinion apparently assumes to make a finding of fact that there was fraud. I am therefore asked to distinguish the present case from that one on the ground that the answer here does not plead fraud, and it is conceded there was no fraud. But if you look into the record in the Hendrickson case you will find that no fraud was pleaded there either, and that there was therefore no such question in that case, and of course there was no finding of fraud by the trial court; and as the Court of Appeals had no power to
(3) I am also of the opinion that the board of supervisors had no power to make such a contract to run longer than the period of its own existence. The care of the roads was an administrative duty to be performed by each successive board during its existence. An existing board could not perform that duty for its successors.
Judgment for the defendant.