People ex rel. Wells v. Board of Audit

Tappen, J. A special town meeting "was held at the town of Hempstead, on the 3d of July, 1874, after due notice, at which a resolution was adopted by ballot, directing suits to be commenced against certain person's, to recover certain common lands of the town. The sum of $400 was appropriated for the expense of the suits, and the relator, Obadiah Wells, was, by the same meeting, appointed attorney to institute the same. The suits were commenced, and a bill rendered by him against the town for $255, for the money claimed to have been expended by the relator for counsel fees and other expenses in such suits. The board of town auditors, at a regular meeting on the 28th November, 1874, had this bill before them, and passed a resolution of rejection. The relator seeks by mandamus to compel the allowance of the claim; the special term denied the motion for the writ, and he now appeals to the general term. The respondents say that the board of auditors had closed their hearings of accounts against the town, and had delivered their certificate thereof to the supervisor to be laid before the board of supervisors, and that this was done before the relator’s claim was presented. Also, that the order of the special term, requiring the respondents to show cause, was not granted until after the board of auditors adjourned, sine die. - We think the call for the town meeting sufficiently specific, and the proceedings at such meeting regular and in accordance with the statute. Instead of intrusting the prosecution of the action to the supervisor, the town devolved that duty upon the relator. In making an appropriation, it expressly agreed to pay to the relator his reasonable expenses in the performance of that duty. That a mandamus, in cases of this kind, is the appropriate remedy, is held in Bell v. Town of Esopus, 49 Barb. 506; Brady v. Supervisors, 2 Sandf. 460; S. C. affirmed, 10 N. Y. 260. The proceedings at the meeting were within the rule in Cornell v. Town of Guilford, 1 Denio, 510; and that the hours of the meeting were not irregular, see People v. Martin, 5 N. Y. 22. That the board of audit had adjourned finally and without naming a day for reassembling, is a reason why the peremptory writ cannot now be enforced against the members thereof. People v. Auditors of Westford, 53 Barb. 555; S. C. affirmed, 38 [377] How. 23. But where the writ will lie, it may issue to be enforced at the next lawful meeting of the board. The order of the special term should be reversed, and the peremptory writ allowed. Ordered accordingly.