Opinion
May, 1905.
Samuel S. Hatt, for the appellant.
James R. Van Ness, for the respondents.
The order appealed from denies the relator's application for a peremptory writ of mandamus to compel the defendants, constituting the board of auditors of the town of Lake Pleasant, to reconvene as such board and to reconsider and revoke their action upon the claim of the relator against said town, to permit him to give lawful proof thereof, to thereupon reaudit said claim and to thereupon make, sign and file in the office of the clerk of said town a certificate of their action, as required by section 162 of the Town Law.
It is clear from the petition and the answering affidavits that the relator presented his claim to the defendants for audit on November 10, 1904, and that such claim was wholly disallowed by them.
After taking such action upon the relator's claim the defendants made and filed in the office of the town clerk of that town a paper, of which the following is a copy:
"We, the undersigned, Town Board of Auditors of the town of Lake Pleasant, pursuant to the Town Law, dc hereby certify that the following is a correct abstract of the names of all persons who have presented to said board accounts to be audited, the amounts claimed by each of said persons and the amounts audited by them respectively:
"No. of Claim. Claimant. Nature of Claim. Amt. Claimed. Amt. Allowed. * * * * * * * * * * * * * * *
"16 L.L. Boyce Claim for legal $1,530.35 Disallowed. services. * * * * * * * * * * * * * * *
"Dated Nov. 11th, 1904. "(signed) BENAJAH PAGE, Chairman, "FITCH BUYCE, "FRANK E. ABRAMS, " Board of Auditors."
The above paper is in form of the abstract required to be delivered annually, under section 170 of the Town Law (Laws of 1890, chap. 569), to the clerk of the board of supervisors, and is not the certificate required by section 162 of such law, as amended by chapter 481 of the Laws of 1897. The latter section provides: "If any account is wholly rejected the board shall make a certificate to that effect, signed by at least a majority of them and file the same in the office of the town clerk." While the paper as made by the defendants was filed in the office of the town clerk, it is not a certificate that the claim was wholly rejected, as required by said section 162. Indeed, the only facts certified to are that the abstract correctly states the names of the persons who presented to the board accounts to be audited, the amounts claimed by each of them and the amounts audited by the board respectively. The fact that under the words "Amt. Allowed," in the abstract, there is nserted on the line describing relator's claim the word " Disallowed," does not add anything to the force of the certificate, which is that the abstract contains the "amounts audited" by the defendants. There was no amount audited under this claim and the certificate itself contains nothing to the effect that the relator's claim was wholly rejected by the board. The relator was entitled, if the board upon the audit of his claim wholly rejected it, as is claimed by the defendants, to have a certificate to that effect made and signed by at the least a majority of them, and filed by them, as required by section 162 of the Town Law (as amd. supra). ( People ex rel. Canton Bridge Co. v. Auditors, 42 Misc. Rep. 116; affd., 95 App. Div. 620.)
In People ex rel. Remington v. Manning ( 37 App. Div. 143), FOLLETT, J., in referring to said section 162, says: "It is a wise statute and should be strictly enforced, * * * and if not complied with it should be enforced by the courts upon the application of any citizen of the town, as well as upon the application of a person having an account against the town which is not audited in the manner provided by the section."
The section required the defendants to make and sign by at least a majority of them a record of their action upon the relator's claim to be filed in the office of the town clerk. That section not having been complied with, a proper case is presented for a mandamus to compel the defendants to perform the duty imposed upon them in that respect by the section.
The order should be reversed, with ten dollars costs and disbursements, and a peremptory writ of mandamus granted, with fifty dollars costs and disbursements to the relator, requiring the defendants to reconvene and to thereupon make, sign and file in the office of the clerk of the town of Lake Pleasant a certificate of the rejection of the relator's claim as required by section 162 of the Town Law (as amd. supra).
All concurred.
Order reversed, with ten dollars costs and disbursements, and a peremptory writ of mandamus granted, with fifty dollars costs and disbursements to the relator, requiring the defendants to reconvene and to thereupon make, sign and file in the office of the clerk of the town of Lake Pleasant a certificate of the rejection of the relator's claim as required by section 162 of the Town Law.