Barber v. Town of New Scotland

64 A.D. 229, 71 N.Y.S. 1052

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 15, 1901
• Status: Published

Opinion

Kellogg, J.,

The referee finds as a fact, and upon sufficient proof, that these plaintiffs presented this identical claim to the board of audit of the town of New Scotland, to be audited against said town, and that it was audited and allowed at $200; and, on certiorari sued out by plaintiffs, the Appelate Division confirmed the judgment of the town board. (People ex rel. McMillen v. Vanderpoel, 35 App. Div. 73.) It appears that plaintiffs thereafter brought this action^ ignoring the judgment of the board of audit and the confirmation thereof by the Appellate Division.

That the town board had jurisdiction tó pass upon the claim after plaintiffs had presented it for their judgment cannot be doubted. The recognition of this authority in the town board of audit, by suing out a writ of certiorari bringing the whole matter into this Appellate Division for review, is also a recognition of the judicial function of the town board of .audit in passing upon the claim upon its merits.

' It so appears, without contention, that plaintiffs have had their day in court, that this matter has once been determined by a competent tribunal, and is res adjtodioata. That this action cannot be maintained is evident from the findings of the referee. It is unnecessary to pass upon the other questions which relate to the power of the assessors of a town to employ counsel to defend their .action as assessors without the authorization of the town board in ■case proceedings by certiorari are brought charging an erroneous assessment. The fact that one judgment has been rendered on the merits of this matter, and that judgment still obtains, necessitates the reversal of the judgment appealed from.

All concurred ; Smith, J., in result.

Judgment reversed, with costs, and complaint dismissed, with costs.