People ex rel. Myers v. Barnes

51 N.Y. Sup. Ct. 574, 8 N.Y. St. Rep. 531

• Court: New York Supreme Court
• Decided: May 15, 1887
• Status: Published

Opinions

Learned, P. J.:

Tlie case says: “ It is admitted that the bills were presented to the board of town auditors of 1885. That they examined them and decided that the town was not legally liable to pay for the whole, or any part of them, and rejected them. The same admission is made as to the action of the board in the year 1883.”

The distinction between auditing a bill and rejecting it, on the one hand, and refusing to audit on the other, may seem small, but it is real.

It is pointed out in People ex rel. Thurston v. Town Auditors of Elmira (82 N. Y., 82), where the court say that “ if the relator’s bill has been in fact audited by the town board, the mandamus awarded was improper. If it has not been so audited it was right to command performance of that duty.” In that case the board “ assumed the right to allow what they pleased, without disputing the facts on the one hand, or the law on the other.”

Now, in the present case, the stipulation says that the board examined the bills and decided that the town was not legally liable. That plainly means that, without disputing the facts, they did dispute the law. Therefore, the board made a decision.

Grant that it was erroneous, it was a decision. Can we by mandamus compel them to decide otherwise ? I think not. If there was an erroneous decision of law, the relator’s remedy, assuming that he had any, was by certiorari. (Code Civil Pro., § 2140, sub. 3.) If, without competent evidence, the board had decided the facts against the relator, he would not be without remedy. (Sub. 5.)

Thus, again, in People ex rel. Brown v. Board of Apportionment (52 N. Y., 227), it is said “ to audit a claim ex vi termini impiorts the exercise of judgment.” Again it was said of a mandamus to audit: “This of necessity submits to those officers the power of determining pro hac vice ’ the legality of the claim as well as its amount.” (People ex rel. Vandervoort v. Cooper, 24 Hun, 340.) To the same effect People ex rel. Everett v. Supervisors (93 N. Y., 404.) So People ex rel. Equitable Fire, etc., Insurance Company v. Fairman (12 Abb. N. C., 272; affirmed, General Term and Court of Appeals), which seems quite in point.

Now there are certain cases in which an auditing board has to exercise its judgment upon the amount of a claim. In such cases, if tbe board refuses to exercise its discretion, mandamus has been held to lie to compel this exercise of discretion. Possibly it would be difficult to make certiorari applicable, where the inferior tribunal had not decided on the question of facts. (See People v. Supervisors, 45 N. Y., 196.) But in the present case there is no discretion which the board has refused to exercise. The amount of the claim on the judgment against relator was fixed. If it was a legal claim, the refusal to allow it was an error of law; an incorrect decision; to be reviewed, as it seems to me, by certiorari.

But again, what would the mandamus command? Not certainly that the board should allow relator’s claim. We are not by mandamus to direct an inferior tribunal how to act. The command would be only to audit, that is, to examine and pass upon the claim. But this the defendants have already done. (See remarks in People ex rel. Thurston v. Town Auditors, Elmira, ut supra.)

I think the judgment should be affirmed with costs.

Mayham, J., concurred.