People ex rel. Cole v. Cross

Woodward, J.: The relator petitions the court to review the action of the town board of auditors of the town of Lagrange, Dutchess county, contending that the action of that body in auditing certain claims for work and labor performed upon the highways at the request of the supervisor of the town, was illegal and without warrant of law. The relator is the commissioner of highways, the amount involved is about eighteen dollars, and the purpose of the proceeding seems to be the vindication of the dignity of the relator as an official of the township, rather than the accomplishing of any important public purpose. It is fundamental in our jurisprudence that the moving party in any litigation shall have an interest in the subject-matter or that he shall be specially authorized by statute to act, and, aside from the relator’s allegation in his moving papers that he is a taxpayer, we find no possible interest of .his involved in this proceeding. The invasion of his rights of office on the part of the supervisor, if it [58] was such, could not be reached or adjusted, in this proceeding. John- Robb and others had performed labor repairing the roads within the jurisdiction of the relator, and the object of this proceeding is to have this court adjudge that there is no authority in law for the payment of these claims which the town board of auditors had audited and allowed. The relator had no interest in the claims; he was not a party to them in any manner, and if any of his rights as a taxpayer were involved, the-law affords a complete and direct remedy by way of a taxpayer’s action under the provisions of chapter 301 of the Laws of 1892 which permits a recovery of any moneys paid upon illegal or fraudulent claims. The return to the writ shows that the claims had been audited and allowed and that the certificate of audited accounts had been delivered to the town supervisor and by him delivered to the clerk of the' board of supervisors as the law provides before this writ was issued, so that the ■ matter had passed from the jurisdiction of the board of town auditors and the rights of- the claimants, who are not parties to- this, proceeding, had been judicially established. The writ is directed to the members of the board of auditors, and, as that body has acted upon the claims and has delivered the records of such action into the hands of the board of supervisors, the matter has passed beyond Jhe jurisdiction of anybody now .before this court and it is well established that under such circumstarices the writ of certiorari can accomplish nothing. (People ex rel. Lake Shore & M. S. P. Co. v. Common Council, 38 Hun, 7, 10, and authorities cited.) It is probably true, as suggested in People ex rel. Village of Brockport v. Sutphin (166 N. Y. 163, 171), that if this bill had not been audited or acted upon by the board of auditors before their adjournment, the writ of certiorari would lie to compel the board at a subsequent meeting to act; but where the claim has been audited and allowed and the record has passed on in its regular order to another body, which body is not before this court, we are of opinion that the relator, assuming him to have an interest in. the subject-matter, has mistaken his remedy. Any order that the court might make in respect to these claims could not affect the action of the board of supervisors or the claimants because none of them are before the court. When to this is added the fact that the relator has no legal rights involved in this pro [59] -ceeding and that he has a complete remedy for any wrong he may suffer as a taxpayer under the act cited above, we are persuaded that the writ should be dismissed. (See People ex rel. Second Avenue R. R. Co. v. Board Comrs., etc., of N. Y., 97 N. Y. 37, 43.) The writ of certiorari should be dismissed, with costs. Bartlett, Hirschberg and Jenks, JJ., concurred; Goodrich, P. J., read dissenting opinion.