Vann, J.
It is claimed by the counsel for tlm village that the appeal brought by the town board should be dismissed, because the decision of the Appellate Division, so far as it reversed the proceedings sought to be reviewed, was unanimous and, according to the presumption required by section 1338 of the Oode, this was in effect a determination that there was evidence supporting or tending to sustain a finding of fact. It is insisted that we are thus deprived of jurisdiction to review that part of the order appealed from. (Const. art,. 6, § 9 ; Code Civ. Pro. § 191.) We think this section simply requires us to assume, when the record is silent upon the subject, that the reversal was not founded upon a question of
fact, so as to enable us to review, the questions of law, and that the presumption was not intended to deprive this court of jurisdiction by requiring ns to assume that the Appellate Division actually decided that there was evidence to support the facts found. The section was enacted, substantially in its present form, before the Constitution was so amended as to prohibit the review of a unanimous decision as to the sufficiency of the evidence. It was not intended to limit hut to extend our jurisdiction. The presumption is artificial and should not be pushed beyond the single purpose for which it was prescribed. A unanimous reversal differs from a unanimous affirmance in that the latter necessarily involves the conclusion that there was sufficient evidence to sustain the facts, whereas the former may be based upon the facts as well as the law, although, if the decision does not so state in express terms, we are obliged to presume, for the sole purpose of reviewing the questions of law, that it was on the law only.
Moreover, section 1338 applies only to an appeal from “a judgment entered upon the report of a referee, or a determination in a trial court, or from an order granting a new trial.” A town board is not a court; its members are not referees and they did not attempt to grant a new trial. The appeal, therefore, of the town of Sweden should not be dismissed.
The point is made by the counsel for the town that it does not appear by the return that the village officials, for whose services the claims in question Avere presented, Avere each paid a salary, and that hence there was no foundation for the claims under the statute. It is distinctly alleged in the petition that these officers received a salary for their services Avhich Avas paid hy the village. The Avrit recites the same allegation and the return does not deny it, although it denies certain other allegations of the petition and Avrit. Thus the question is presented whether the material allegations of fact contained in a petition for a ■ writ of certiorari, which are not denied directly or indirectly by the return, are to be taken as true.
Section 2138 of the Code provides that a certiorari to review must, except in one instance not now important, be heard “ upon the writ and return and the papers upon which the writ was granted.” This provision is ne'w and indicates that the petition has a function to perform aside from merely authorizing the issuance of the writ. The section was construed by Judge Eabl, speaking for all the judges, in
People ex rel. Peck
v.
Commissioners, etc.
(106 N. Y. 64, 67). After recognizing the former practice as limiting the hearing to the return and quoting the material part of the section, he said : “ Under this section, where the return meets all the allegations of fact contained in the writ and the papers upon which it was granted and traverses them, then the hearing must be confined to the facts stated in the return. But, where the return admits the facts stated in the writ or the papers upon which it was granted, or is silent as to them, then such facts become important and must be considered and have effect upon the hearing.
(People ex rel. McCarthy
v.
French,
25 Hun, 111.)”
This section was further considered in
People ex rel. Miller
v.
Wurster
(149 N. Y. 549, 554), where we said: “ It does not mean that the court is at liberty to look beyond the return and to consider the facts stated in the petition and accompanying papers, unless the return made by the respondent should be an admission of those facts or the equivalent of an admission.” In that case it was held that “ the return was in effect a denial of the allegations of the relator’s petition,” and hence that those allegations could not be considered: In other words, all allegations of the petition which are denied expressly or impliedly cannot be made the basis of judicial action, but such allegations as are not denied, even indirectly, are to be regarded as admitted. While the statements in the return import absolute verity, when it is silent as to material allegations of fact contained in the petition, the presumption is that the officers making the return intended to admit those allegations, but this presumption does not extend to conclusions of law which are not admitted even if not denied. This construe
tion avoids motions to amend the return and appeals both to the conscience and the pocket of the officer making the return, for it obliges him to truthfully meet the case made by the petition or to rest under the imputation and become subject to the penalty of making a false return.
(Beardslee
v. Dolge, 143 N. Y. 160.)
The ground upon which the Appellate Division dismissed the writ as to the claim of 1899 was
“
that when the writ herein was issued the town board had adjourned and consequently had lost jurisdiction of the proceedings.” This conclusion finds some support in the discussion of another question in
Osterhoudt
v.
Rigney
(98 N. Y. 222, 230), but, as -was said by the Appellate Division, it was an expression of opinion incidental to the real question at issue and the effect of section 2125 of the Code was not considered. This section, which is new, provides that, with an unimportant exception, “ a writ of certiorari to review a determination must be granted and served within four calendar months after the determination to be reviewed becomes final and binding upon the relator, or the person whom he represents, eithfer in law or in fact.” It does not appear to have been considered in certain cases relied upon by the town to justify the action of the court below in dismissing the writ as to the claim presented in 1899.
(People ex rel. Jonas
v.
Board of Town
Auditors, 49 App. Div. 4;
People ex rel. Cochran
v.
Board of Town
Auditors, 74 Hun, 83.) It was considered in
People ex rel. Andrus
v.
Board of Town Atiditors
(33 App. Div. 277) where it was held that the section is not solely a statute of limitations, as by implication it grants'the relator four months within which to procure a writ in a case where,although the determining body has finally adjourned after making a disposition of the matter in question, it or its successor, at its next authorized meeting, can obey any order made by the court. "We think this is the correct rule and that the legislature intended to extend rather than restrict the scope of the writ.
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Vann, J.
It is claimed by the counsel for tlm village that the appeal brought by the town board should be dismissed, because the decision of the Appellate Division, so far as it reversed the proceedings sought to be reviewed, was unanimous and, according to the presumption required by section 1338 of the Oode, this was in effect a determination that there was evidence supporting or tending to sustain a finding of fact. It is insisted that we are thus deprived of jurisdiction to review that part of the order appealed from. (Const. art,. 6, § 9 ; Code Civ. Pro. § 191.) We think this section simply requires us to assume, when the record is silent upon the subject, that the reversal was not founded upon a question of
fact, so as to enable us to review, the questions of law, and that the presumption was not intended to deprive this court of jurisdiction by requiring ns to assume that the Appellate Division actually decided that there was evidence to support the facts found. The section was enacted, substantially in its present form, before the Constitution was so amended as to prohibit the review of a unanimous decision as to the sufficiency of the evidence. It was not intended to limit hut to extend our jurisdiction. The presumption is artificial and should not be pushed beyond the single purpose for which it was prescribed. A unanimous reversal differs from a unanimous affirmance in that the latter necessarily involves the conclusion that there was sufficient evidence to sustain the facts, whereas the former may be based upon the facts as well as the law, although, if the decision does not so state in express terms, we are obliged to presume, for the sole purpose of reviewing the questions of law, that it was on the law only.
Moreover, section 1338 applies only to an appeal from “a judgment entered upon the report of a referee, or a determination in a trial court, or from an order granting a new trial.” A town board is not a court; its members are not referees and they did not attempt to grant a new trial. The appeal, therefore, of the town of Sweden should not be dismissed.
The point is made by the counsel for the town that it does not appear by the return that the village officials, for whose services the claims in question Avere presented, Avere each paid a salary, and that hence there was no foundation for the claims under the statute. It is distinctly alleged in the petition that these officers received a salary for their services Avhich Avas paid hy the village. The Avrit recites the same allegation and the return does not deny it, although it denies certain other allegations of the petition and Avrit. Thus the question is presented whether the material allegations of fact contained in a petition for a ■ writ of certiorari, which are not denied directly or indirectly by the return, are to be taken as true.
Section 2138 of the Code provides that a certiorari to review must, except in one instance not now important, be heard “ upon the writ and return and the papers upon which the writ was granted.” This provision is ne'w and indicates that the petition has a function to perform aside from merely authorizing the issuance of the writ. The section was construed by Judge Eabl, speaking for all the judges, in
People ex rel. Peck
v.
Commissioners, etc.
(106 N. Y. 64, 67). After recognizing the former practice as limiting the hearing to the return and quoting the material part of the section, he said : “ Under this section, where the return meets all the allegations of fact contained in the writ and the papers upon which it was granted and traverses them, then the hearing must be confined to the facts stated in the return. But, where the return admits the facts stated in the writ or the papers upon which it was granted, or is silent as to them, then such facts become important and must be considered and have effect upon the hearing.
(People ex rel. McCarthy
v.
French,
25 Hun, 111.)”
This section was further considered in
People ex rel. Miller
v.
Wurster
(149 N. Y. 549, 554), where we said: “ It does not mean that the court is at liberty to look beyond the return and to consider the facts stated in the petition and accompanying papers, unless the return made by the respondent should be an admission of those facts or the equivalent of an admission.” In that case it was held that “ the return was in effect a denial of the allegations of the relator’s petition,” and hence that those allegations could not be considered: In other words, all allegations of the petition which are denied expressly or impliedly cannot be made the basis of judicial action, but such allegations as are not denied, even indirectly, are to be regarded as admitted. While the statements in the return import absolute verity, when it is silent as to material allegations of fact contained in the petition, the presumption is that the officers making the return intended to admit those allegations, but this presumption does not extend to conclusions of law which are not admitted even if not denied. This construe
tion avoids motions to amend the return and appeals both to the conscience and the pocket of the officer making the return, for it obliges him to truthfully meet the case made by the petition or to rest under the imputation and become subject to the penalty of making a false return.
(Beardslee
v. Dolge, 143 N. Y. 160.)
The ground upon which the Appellate Division dismissed the writ as to the claim of 1899 was
“
that when the writ herein was issued the town board had adjourned and consequently had lost jurisdiction of the proceedings.” This conclusion finds some support in the discussion of another question in
Osterhoudt
v.
Rigney
(98 N. Y. 222, 230), but, as -was said by the Appellate Division, it was an expression of opinion incidental to the real question at issue and the effect of section 2125 of the Code was not considered. This section, which is new, provides that, with an unimportant exception, “ a writ of certiorari to review a determination must be granted and served within four calendar months after the determination to be reviewed becomes final and binding upon the relator, or the person whom he represents, eithfer in law or in fact.” It does not appear to have been considered in certain cases relied upon by the town to justify the action of the court below in dismissing the writ as to the claim presented in 1899.
(People ex rel. Jonas
v.
Board of Town
Auditors, 49 App. Div. 4;
People ex rel. Cochran
v.
Board of Town
Auditors, 74 Hun, 83.) It was considered in
People ex rel. Andrus
v.
Board of Town Atiditors
(33 App. Div. 277) where it was held that the section is not solely a statute of limitations, as by implication it grants'the relator four months within which to procure a writ in a case where,although the determining body has finally adjourned after making a disposition of the matter in question, it or its successor, at its next authorized meeting, can obey any order made by the court. "We think this is the correct rule and that the legislature intended to extend rather than restrict the scope of the writ. It prevents the defeat of an important remedy when the town board disallows a claim, makes and files the certificate and adjourns on the same day
whether from proper motives or with the intent to prevent an examination of their official action. The board is a continuous body ; any change in the persons composing it is unimportant, and there is nothing to prevent it from acting upon the claim in some subsequent year when its previous determination disallowing the claim has been reversed. The claim, so far as allowed, can then go before the board of supervisors and a failure of justice thus be prevented.
(People ex rel. Heiser
v.
Gilon,
121 N. Y. 551;
Matter of Corwin,
135 N. Y. 245.)
The claim that the village of Brockport was reincoi-porated and thus became entitled to the benefits of the General Village Law is challenged upon the ground of irregularities affecting the special election held to determine the question of reincorporation. The statute provides that if at such election the majority of votes are in the affirmative “ then the village shall become and be incorporated under this act.” (L. 1870, ch. 291, § 30.) A conclusive answer to this challenge is found in chapter 84 of the Laws of 1873, entitled “ An act in relation to the village of Brockport,” which does-not violate section 1G of article 3 of our State Constitution, as claimed by the town board. This act contains seven sections, all relating to the powers of the'village under its charter except section five, which declares in effect that it has a charter by confirming said special election. Each section has a direct connection with the village of Brockport. We agree with the learned Appellate Division that where
“
the title of a local law expresses a general purpose or object, all matters fairly and reasonably connected therewith and all measures which will or may facilitate the accomplishment of such purpose or object are properly incorporated into the act and are germane to the title.” (Citing
People ex rel. City of Rochester
v. Briggs, 50 N. Y. 553; N
euendorff v. Duryea,
69 N. Y. 557. See, also,
Wrought Iron Bridge Co.
v.
Town of Attica,
119 N. Y. 204;
Van Brunt
v.
Town of Flatbush,
128 N. Y. 50;
Sweet
v.
City of Syracuse,
129 N. Y. 316.)
While we have considered all the questions raised by either party, we shall express our views only as to one more, leaving
the rest to the necessary inference flowing from our final conclusion.
It is apparent from the return, although not so expressly stated, that the claims under consideration were rejected in gross for the reason that in the opinion of the town board they were not valid claims against the town, not because the services were not rendered, but because the village had no right to present such claims as it had not been lawfully reincorporated. The good faith of the members of the town board can be sustained only upon the theory that they regarded any charge for the fees of the village officials, even when duly proved, as having no foundation in law. In determining that no part of either claim ivas valid they committed an error of law to the prejudice of the relator. (Oode Civ. Pro. § 2140.) It may be, however, that some of the items, which approximate
1,500
in number, should not be allowed. The Appellate Division itself adjusted and allowed the claim of 1898, which included meals furnished prisoners and other items that may or may not be properly chargeable to the town, or, if chargeable, it may be that they should be reduced in amount. The counsel for the village admits that
“
the sum charged for meals may he cut down by the board, and doubtless the same is true of other items,” but he continues, and we agree with him,
“
Avhen the toAvn board. rejected the bills as a Avliole it committed an error of laiv Avhich it is the province of a writ of certiorari to review.” The audit of the toAvn board evidently extended no further than to reject the bills, because under no circumstances could any of the items be alloAved. Unless the opportunity is given to the auditing board to sift the items and reject those charged for services not performed, or not alloAved by laAv, and reduce those charged at too high a rate, injustice may be done. Under these circumstances, we think, the claims should be remitted to the toAvn board, Avitli instructions to audit them as required by law.
The order appealed from, in so far as it dismisses the writ as to that portion of the relator’s claim presented in 1899, is reversed; but said order, so far as it relates to that portion of
the relator’s claim presented in 1898, is modified by striking out - the provision readjusting and allowing the same, and as thus modified is affirmed, witii costs. It is further ordered, that the claims for both years he remitted to the' town board of the town of Sweden, with instructions to audit the same pursuant to law, and that the relator recover the costs of this appeal.
Parker, Oh. J., O’Brien, Babtlett, IIaigi-it, Martin and Landon, JJ., concur.
Ordered accordingly.