People ex rel. Brooklyn Cooperage Co. v. King

Chester, J.: It is urged by the relator that the final order in the mandamus proceeding is- res judicata betvveen the parties and by the defendants that as that was made at the close of the relator’s proofs it was simply a nonsuit and not a determination upon the merits. From [92] the view we take of the case it is unimportant which of' these contentions is'right, for it is entirely clear to ús, as decided by-the' court in that proceeding, that when the. claim was first presented for audit by the relator it was not in form to give the board jurisdiction to act thereon, except to reject it for informality,- for it was then neither verified .nor itemized as required by law. (Town Law [Laws of 1890, chap. 569], § 167.) It is conceded by the defendants that the question whether the claiin was audited and •disallowed in December, 190.3, was not involved in that litigation, but" only the question as to whether or not.it was legally audited and allowed in November, 1903. We think the determination of the case we are now considering turns wholly upon the question whether or not'there was a legal audit' and disallowance- of the clainuwhen the. board in December,. 1903, assumed to reconsider its former illegal action in indorsing its allowance upon the claim. - ' If .there was then such an audit and disallowance the board was correct in. holding that it had no jurisdiction .to pass upon it a second time. (People ex rel. Myers v. Barnes, 114 N. Y. 317 ; Osterhoudt v. Rigney, 98 id. 222.) But if it was not then presen ted-by or on behalf of the relator and without -its knowledge, or was- improper and defective in form, such presentation is not a bar to a subsequent presentation and audit. (People ex rel. Andrus v. Town Auditors, 33 App. Div. 277.) ■ It cannot be properly said that the action of the board in Decern-' ber,. 1903, was in 'any sense a reconsideration of its former action, for w-liat was then'done related to a distinct and separate presenta-tian by a different party óf a different claim than' that first presented by the relator. -The relator presented no claim in December. The. one then acted upon was not the one presented by the relator in November before,, but was one furnished by Le Boeuf, the fire warden, and which, while- it included the' items of the relator’s claim, also included those of a large number of other claimants, and was. presented in his náme and not that of the relator, and with no apparent or proven authority from the relator to act as its .agent in such presentation. . • In the return to the alternative writ of mandamus made'in 1904, it was alleged that" the' relator did not after'November 5, 1903,' [93] present to or supply the board with “ any items, verified statements of any such claim or properly prepared itemized claim against said town,” which allegation is altogether inconsistent with the claim now made, that it was properly presented for audit on behalf of the relator and disallowed in December, 1903. Moreover it, is not apparent from this record that the relator had any notice that its claim was again to be presented in any form in December, 1903. It is true that in the return it is stated that the relator “ had due notice ” of the reconsideration by the board of its previous action and of i.ts proceedings upon such reconsideration, but this is a mere allegation of a conclusion. There is nothing said as to whether the notice was served upon the relator before of after such alleged reconsideration, nor as to where, or by whom or upon whom such notice was served, nor is there any return of any notice or of any proof of service of any notice 'upon the relator, and the relator denies that it had any knowledge of any presentation or reconsideration until long after it had occurred. Brotó all this it cannot be held that it had due notice, or any notice. FT or was the claim which was presented by Le Boeuf properly verified to give the board jurisdiction to act upon it, upon the merits. It bore only the affidavit of LeBoeuf, “ that the charges are proper'and correct and that no part thereof has been paid or satisfied.” The statute (Town Law, § 167) provides that no account shall be audited unless such account shall be made out in items and accompanied with an affidavit attached thereto, and .to be filed with such account, made by the person presenting or claiming the same, “ that the items of such account are correct and that the disbursements and services charged therein have been in fact made or rendered * * * and stating that no part- thereof has been paid or satisfied.” It was natural, of course,, and commendable for Le Boeuf, who had no connection with the relator or its business and, therefore, no personal knowledge as to whether the items in the account were correct or whether the services charged therein had been in fact rendered, to omit the statement of those facts from the affidavit, but by reason of such omission the affidavit failed to comply with the law. There was and could have been, therefore, no audit and disallowance of the relator’s claim in December, 1903, which would be effectual to operate as a bar to a subsequent pre [94] sentation of the claim in proper form, (People ex rel. Andrus v. Town Auditors, supra.) ; So far as this record shows, the relator has never had its claim properly presented and audited hy the town board, and the denial' by the board of an audit of the claim when last presented, on the ground of lack of jurisdiction in the board to act .upon it, cannot be sustained. - • ' An opportunity should, therefore, be afforded to the relator to present its. claim in' due form, supported by such proofs as it desires to furnish, in order .that it may exercise its right under -the law to review the determination in case of a disallowance of the claim in whole or in' part. . The determination should be annulléd, with fifty dollars costs and disbursements. All concurred. - - . ‘ Determination annulled, with fifty dollars costs and disbursements.