Kiehm v. Board of Education

203 A.D. 245, 196 N.Y.S. 789, 1922 N.Y. App. Div. LEXIS 7167

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1922
• Status: Published

Opinion

Per Curiam:

The Board of Education of the City of Utica refused to audit the claim of the petitioners upon the ground that it did not have authority so to do. Upon return to this court upon the writ of certiorari based upon such action of the board, this court held that the board did have authority to audit the claim, it sustained the writ and directed the board to audit the claim of the petitioners upon the merits. (People ex rel. Kiehm v. Board of Education, 198 App. Div. 476.) Thereafter various hearings were had and the petitioners furnished evidence to the effect that their claim was just and legal for the sum of $29,904.15. It appeared without dispute that they were employed by the board, that the board availed itself of their services and at one time audited a bill for part of the services rendered at the sum of $15,246, which, however, was never paid. Upon the hearing in this proceeding no evidence was introduced which in any way disputed the validity of the bill filed or the amount thereof. After the close of the evidence the board audited the claim of the petitioners at an arbitrary sum of $12,500, without any basis therefor in the evidence. The only claimed basis for such action is evidence furnished by the petitioners that they employed an architect to work upon the plans with them and that his services were worth to them $15 per day. The board, therefore, allowed to each of the petitioners $15 per day, upon the theory that if the services of the architect employed by them were worth only $15 per day, their services were worth only that amount, although they had the responsibility and burden growing out of furnishing of plans, specifications and estimates which should be-suitable and without error. Such action of the board was entirely without justification, arbitrary and unreasonable.

The return of the board contains a statement that the return “ constitutes all the proceedings taken to make the audit above referred to.” We are, therefore, limited to the facts set out in the return and cannot assume, as was done in the case of People ex rel. McMillen v. Vanderpoel (35 App. Div. 73), that the board had other information upon which it based its audit. So far as the record shows, the petitioners were entitled to have their claim audited at the sum of $29,'904.15, and there was no justification for arbitrarily auditing it at $12,500.

The determination of the board should be so modified as to allow the claim at the sum of $29,904.15, and as so modified affirmed, with fifty dollars costs and disbursements. (People ex rel. Groton Co. v. Town Board, 92 Hun, 585.)

All concur.

Determination of board of education modified and claim allowed at $29,904.15, and as so modified the determination is confirmed, with fifty dollars costs and disbursements.