People ex rel. Rice v. Board of Auditors of Hannibal

Martin, J. The relator was the survivor of the firm of Howe & Rice, who were attorneys of this court. They were employed by the supervisor of the town of Hannibal to commence an action in his name against the board of supervisors and county treasurer of Oswego county, to recover certain taxes which had been collected of the Rome, Watertown & Ogdensburg Railroad Company, and improperly applied for the use and benefit of the county. The action was commenced, and by them prosecuted to judgment, and the plaintiff had a recovery. Similar actions were commenced and .prosecuted to judgment by the relator for the towns of Oswego, Hastings, and Sandy Creek. Afterwards, and on the 5th day of November, 1891, the relator, as such survivor, presented to the town auditors of the town of Hannibal a bill of $200 for the services and expenses of the firm in conducting that action. Without examination of relator’s bill, or discussion by the board, a motion was adopted allowing him the full amount. On the same day several citizens.of the town of Hannibal appeared before the board of auditors, and protested against the auditing and allowing of the relator’s claim, on the grounds “(1) that the bill for services was not itemized; (2) that the bill for services and expenses were not separated or given in items, norths kind of services or time spent in such services given. ” The bill was then examined by the board, and decided not to be in accordance with the requirements of the statute. The resolution allowing tile bill was thereupon rescinded, and the board adjourned until November 14, 1891, for a rehearing of the relator on his claim. The chairman of the board was instructed by it to notify the relator of its ac-. tian, and to request him to itemize his bill. The chairman was also instructed to inquire into the employment of the relator, and the facts and circumstances relating to his claim.' On the 14th of November, 1891, the board met pursuant to such adjournment, and its chairman reported that he had notified the relator of the adjournment and requirements in relation to his bill, and that the relator informed him that he would itemize the bill for the expenses, but could not itemize it so far as it related to services. The relator did not appear before the board, but had a statement presented containing an itemized account of the expenses contained in his claim, but not as to the-services. His claim for services was stated, “For services, $192.” The chairman then stated that he had inquired of Eli P. Barrett, the then late supervisor of the town, as to the relator’s employment, or the employment of his firm, and that he was informed by Barrett that no amount df compensation was agreed upon, but that Barrett had been solicited by the relator and by o.ther supervisors to place the matter in the relator’s hands, as the suits of the four different towns could be tried nearly as cheap as one, and it would make it less expensive for each town, and that the relator represented that the suits would not be expensive. The chairman also stated to the board that he had learned that there was no separate trial for the town of Hanni 167 bal, but that the suits by the towns of Hannibal, Oswego, Hastings, and Sandy Greek were all tried and disposed of at one time, and the whole trial or hearing occupied less than one day. At this time several of the citizens off the town of Hannibal again appeared before the board, and objected to the auditing and allowing of the relator’s claim on the grounds: “(1) The bilD for services is not itemized according to law; (2) there is no length of time given in the bill in which service was performed for the town, nor the kind or items of such labor given, and therefore there is no evidence before the-board of the value of the labor so performed, except the statement in the affidavit of the relator; (3) that the bill is excessive, and for a greater sum than? the value of the labor performed. ” The board then inquired of ST. B. Brower*, a counselor of this court, as to the relator’s claim, and Brower informed it that he was familiar with the litigation and suit out which the relator’s bill arose, and explained it to the board at length. He also stated that, aside-from the expenses, and what had been previously paid the relator or his firm, $192 was a full and fair price and compensation for the preparation and trial of all four of the suits tried. A motion was then made that the items of expenses contained in the relator’s bill be allowed at the full amount* which was $8, and that the claim for $192 for services be rejected, for the reason that it was not itemized, and contained no evidence of value, save the relator’s statement, and was, in the judgment of the board, excessive; bufe that $48 be audited and allowed to the relator as that town’s share or part of the relator’s compensation for the preparation and trial aforesaid, and for said) claim. This motion was unanimously adopted, and the $56 so audited and allowed was placed upon the town abstract of accounts allowed against the-town, delivered to the supervisor of the town, and presented by him to the-board of supervisors of Oswego county'. The amount thereof was levied upon, the town, collected, and tendered to the relator, who refused to receive it. On December 30, 1891, the relator obtained a writ of certiorari to review the action of the board, and asks this court to make a final order modifying the determination of the board by awarding to him the sum of $200, with interest and costs, and directing the same to be levied and collected from the taxable property of the town as other town charges are levied and collected-The respondent contends that the determination of the board of audit upon the relator’s claim was at most a technical rejection of his claim, for the reason that it was not properly itemized, and therefore not such a final determination as would prevent a subsequent presentation of his claim for services, or would justify the issuing of a writ of certiorari. An examination of the determination made discloses that the board of audit allowed the portion of there! ator’s bill or claim that related to the expenses at the full amount claimed*, but rejected the portion of his claim for $192 for services, for the reason that it was not itemized, and contained no evidence of value, except the relator’s statement, and was, in the judgment of the board, excessive. It also contained this further provision: “But that $48 be audited and allowed to the relator as this town’s share or part of the relator’s compensation for the preparation and trial aforesaid, and for said claim.” That the action of the board! was final as to the expenses there can be no doubt; but of its action in that, respect no complaint is made. If the rejection of the relator’s claim for services had stood alone upon the ground of the insufficiency of the proof as to its-nature, extent, and value, the relator would doubtless have been in a position to have again presented his claim. The board, however, went further, and* while it rejected his claim for $192 upon that ground, it allowed him $48 ore his claim as to the town’s share of the relator’s compensation. When we-consider the whole determination together, we are disposed to think that the action of the board of audit amounted to a rejection of the relator’s claim except as to $48 thereof allowed, and that it constituted a final determination of the matter on its merits. Assuming that the determination of the audi 168 tors was final, the question is presented whether the relator can by certiorari obtain the relief sought, the certificate of audited accountr having' been previously delivered to the supervisors. In Osterhoudt v. Rigney, 98 N. Y. 222, Andrews, J., in discussing this question, said: “But not only is the issuing of the writ discretionary, but, to be effectual, it must be prosecuted while the Aboard of audit has jurisdiction of the proceedings. Its jurisdiction of accounts presented for audit terminates with the delivery to the supervisor of the schedule of audited accounts, and, after that has been done, a certiorari directed to the board would be fruitless. * * * The remedy by certiorari, therefore, must, be taken, if at all, before the delivery of the certificate of audited accounts to the supervisor.” See, also, People v. Supervisors Queens Co., 82 N. Y. 275; People v. Reddy, 43 Barb. 539; People v. Supervisors Rensselaer Co., 34 Hun, 266; People v. Tompkins, 40 Hun, 228. As the certificate of audited accounts was delivered to the supervisor, and by him delivered to the board of supervisors of Oswego county before the writ in this case was issued, it would seem to follow that the proceedings herein should fee dismissed, and the writ quashed. Moreover, when we examine the merits of this controversy, it appears that the board of audit, when it examined the relator’s bill, found that his claim for services and expenses was not itemized, and contained nothing to show the character of the labor -performed, except that it was performed in the suit mentioned, nor to show the time spent either by his firm or the counsel in the case in the preparation and trial, or the value •of the services of either the firm or the counsel. Under these circumstances, the board rescinded its former action in allowing the claim, adjourned until Hovember 14th for a rehearing of the relator on his bill, and instructed its chairman to notify the relator of its action, and to request him to itemize his bill. Such notice was given. The relator itemized his bill as to the expenses, but not as to the services. He neither attended before the board nor gave any •evidence as to the value of the services rendered by him. The board then made inquiries as to the services performed, and their value, and thereupon allowed the relator the full value of the services according to the information received. If the merits of this controversy were before us, it would be difficult to see how, upon the facts as shown by the appeal book, the relator is entitled to the relief sought. The board of auditors seem to have acted in good faith, and diligently sought, as best they could, to inform themselves as to the value of the services rendered, while the relator neglected to furnish the board any evidence of the amount of services performed, or their value. We are of the opinion that the writ should be quashed, and the proceedings dismissed. Writ quashed, and proceedings dismissed, with costs. All concur.