Opinion
June 30, 1919.
Chester Wood, Corporation Counsel, for the appellants.
Ainsworth, Carlisle Sullivan [ Charles B. Sullivan of counsel], for the respondent.
It must be assumed in this proceeding that the city had a claim as alleged against the relator because of its delay in the performance of its contract and that the relator was aware of its liability in that respect. It knew of the delay and it knew the provisions of its contract.
Assuming as contended by the relator that the estimate of the engineers of the water board was final and conclusive it was only so as to matters included within the estimate. It did not on its face purport to include all matters between the parties but expressly excluded "claims that may be presented by Watervliet Water Board direct." The counterclaim of the city was not within the estimate.
The fact that the water board set in motion the machinery of the city and raised money part of which was expressly applicable to the payment of the relator's claim does not aid the relator. That was a matter between the water board and the city. It was for the purpose of raising funds to pay for the construction of the water works system. Section 8 of chapter 428 of the Laws of 1914 (as amd. by Laws of 1915, chap. 131) provided that such payment should be made from the proceeds of bonds to be issued by the city for the purpose and that the water board should be the custodian of the proceeds of such bonds and should have control of the funds thus created and make payments therefrom. If it had not been for the amendment of the city charter payment of the relator's claim would have been a matter exclusively within the control and authority of the water board. Clearly in such case the relator would have no greater claim to the proceeds of the bonds authorized July 29, 1918, than it would to money which might have remained in the hands of the water board from previous bond issues. Unless the claim of relator would have been enforcible against money in the possession of the water board from former bond issues it would not be enforcible against the proceeds of the new bond issue. There had been nothing in the previous relations between that board and the relator to prevent the board from refusing payment to the relator if there was a valid offset in favor of the city. The provision in the relator's contract providing for monthly estimates and for a final estimate by the engineers of the water board were for the benefit of the board to guide it in making payments to the relator. The board was the body charged with the duty of determining whether payment should be made to the relator. The fact that money might have come into its hands applicable to such payment would not have required an unlawful payment to be made. The relator is in no better position because the money instead of being in the hands of the water board is in the hands of the city chamberlain. A fund in his hands applicable to the payment of the relator's claim gives the latter no title thereto unless it can otherwise justify such title.
Furthermore when in July, 1918, the water board certified to the common council the amount necessary to pay the relator's claim the new charter was in force which (§ 129) took from the water board the power "to audit accounts and pay the same" and (§ 97) made the commissioner of accounts the auditing officer. Nothing which the water board did then or subsequently had the effect of an audit because that board then had no auditing power and as we have seen the board had previously done nothing to conclude the city except through its engineers to make an estimate which did not include the city's counterclaim.
But there is still another objection to the proceeding. As stated the money which the relator seeks is in the hands of the city chamberlain under the revised charter. Section 97 of that act provides that a claim of the character in question shall not be paid unless it is first "approved by the head of the department or office whose action gave rise or origin to the claim" and "shall have been presented to the commissioner of accounts, and shall have been audited and allowed by him." Section 129 of the new charter continues the water board in existence with certain limitations. The effect of these statutory provisions very clearly is to prevent the payment of any claim of the nature of the one in question except with the concurrence of the commissioner of accounts and "the head of the department or office whose action gave rise or origin to the claim," in this case the water board. That board in December, 1918, expressly by resolution withheld its approval. And if it be true as claimed by the relator that what had previously occurred in reference to the claim amounted to an audit or determination thereof not reviewable by the commissioner of accounts it is also true that the claim should have been presented to that officer, not for the purpose of having him review an audit previously made, but that he might determine whether there had been such an audit and that it was thereby a lawful claim against the city. Because, therefore, the claim had the approval neither of the water board nor of the commissioner of accounts and had not been presented to the latter officer for his consideration the writ should not have been issued. The water board is not a party to this proceeding.
The relator urges that the revised charter went into effect after its claim became due and that, therefore, it need not comply with those provisions. The answer to that argument is that the relator is seeking money in the hands of the chamberlain under the revised charter and cannot avail itself of some of the provisions of that act without complying with all of its requirements. The relator is asserting an extraordinary remedy. It can in this proceeding only require the city officials to do what their duty requires. And they have no right to make the payment in question except in conformity with the requirements of the charter.
The final order should be reversed, with costs, and the proceeding dismissed, with fifty dollars costs and disbursements.
All concurred.
Final order reversed, with costs, and proceeding dismissed, with fifty dollars costs and disbursements.