People ex rel. McDonough v. Board of Supervisors

40 N.Y. Sup. Ct. 305

• Court: New York Supreme Court
• Decided: September 15, 1884
• Status: Published

Opinion

Dykman, J.:

Tbis is a proceeding by mandamus to compel tbe board of super visors of Queens county to audit and allow a claim of tbe relator for $1,333.80. Tbe claim comes in tbis way: There was a bridge to be constructed at Blissvilie, over Newtown creek, which there forms the boundary between tbe counties of Kings and Queens, and tbe bridge was to be made and paid for by tbe two counties, each paying one-half of the expense. Tbe relator was appointed tbe supervising engineer of the work, and there is some obscurity respecting tbe terms of his employment and tbe amount of bis compensation. He claims that be was to receive five per cent on tbe entire cost of tbe work, and tbe defendant claims that be was to receive five per cent on tbe contract price of tbe work, to be done in pursuance of tbe plans and specifications. In tbe view now to be taken, it will not become necessary to determine that question. Tbe relator was employed to prepare plans and specifications for tbe building of the bridge, and to superintend the work in Septemher, 1880. He drew tbe papers and continued to superintend tbe work of construction until December 2,1881, when he was discharged therefrom. Soon after that he presented a claim for services claimed to have been rendered by him under his employment for $1,890.49. This bill came before the board of supervisors of Queens, county for action, and was refereed to an appropriate committee. The committee made a report and recommended the adoption of a, resolution auditing and allowing the bill at $330.50, one-half payable by each county. • Thereupon the board adopted a resolution directing the county treasurer of Queens county to pay the relator $165.25, “ being the amount in full due him from Queens county under his contract with said county.” In June, 1883, the relator assigned this claim so audited to Anthony Miller, and he has received the amount from the county treasurer. This was after the commencement of these proceedings. Tet it was held by the trial court that the relator was concluded by this audit and payment, and the case seems to fall easily within the principle. The claim was audited at the-amount specified as a full payment, and the relator might accept it or institute legal proceedings for the enforcement of his whole demand. He elected to accept the amount offered on the terms and conditions imposed of payment in full, and he cannot now repudiate his choice.

The trial court held very properly that the relator was not entitled to extra compensation for delay in the completion of the work, nor to any allowance or commission on the cost of constructing the exterior approaches to the bridge.

The judgment should be affirmed, with costs.

Pratt, J.:

The relator held a claim against the county of Queens which was presented in due form, by him, to the board of supervisors of that county. A large portion of the claim was rejected and the bill was audited at the sum of $165.25 ; this bill so audited was assigned to one Anthony Miller, and the treasurer of Queens county was by the terms of the assignment directed to pay the said sum to the assignee; the amount was subsequently paid by the county treasurer to Miller, who gave his receipt therefor; the assignment and receipt for this claim estop the relator' from maintaining this proceeding.

The board of supervisors have power “to examine, settle and allow all accounts chargeable against such county.” (1 R. S., 366, 367, § 4, sub. 2.) Their act was a judicial act and adjudicated the amount the relator was entitled to receive. (Brady v. Supervisors, 10 N. Y., 260; Martin v. Supervisors, 29 id., 645.) Their audit was in the nature of a judgment against the county. A party cannot accept the benefit of a judgment and at the same time appeal from it. (Knapp v. Brown, 45 N. Y., 209; Bennett v. Van, Syckel, 18 id., 481; Kelly v. Bloom, 17 Abb., 231.)

By accepting the amount of the audit, the relator waived his right to further prosecute his claim.

Barnard, P. J., not sitting.

Judgment affirmed, with costs.