Summary
In Wallace v. Jones, 83 App. Div. 152, 82 N.Y.S. 449, the phrase in a statute "by collusion or otherwise, contracting, auditing," etc., though interpreted by the rule of ejusdem generis, was held to mean "an audit due to some sinister or improper motive and in violation of the public trust."
Summary of this case from State v. ScottOpinion
May Term, 1903.
Thomas Young [ George Wallace with him on the brief], for the appellant.
Frederick Ingraham [ Henry A. Monfort with him on the brief], for the respondents.
This is an appeal from an interlocutory judgment sustaining the separate demurrers of the defendants. I think that the judgment must be affirmed on the ground that the first cause of action does not state facts sufficient to constitute a cause of action against the defendants Cox and Willets; that the second cause of action fails in like respect as to Jones and Willets; and that the third cause of action fails in like respect as to Cox and Jones. I shall state the reasons for my conclusion as to the first cause of action, which are alike applicable to the second and third causes of action, mutatis mutandis.
The first cause of action is well pleaded against Jones, but no facts are stated therein which show or permit an implication of facts which show that the other defendants acted within the purview of the Taxpayers' Act (Laws of 1892, chap. 301, amdg. Laws of 1881, chap. 531). If Mr. Jones presented his own fraudulent or illegal bills, that does not establish that an audit thereof by the board of which he was a member was "by collusion or otherwise." The word "otherwise," as used in the statute, "by collusion or otherwise, contracting, auditing," etc., is to be interpreted by the rule of ejusdem generis. ( Penfold v. Universal Life Insurance Co., 85 N.Y. 317; People v. Elfenbein, 65 Hun, 434; Whelen's Appeal, 70 Penn. St. 410, 429; State v. Kelly, 32 Ohio St. 421, 429; Endl. Interp. Stat. § 407.) It does not mean any audit, but an audit due to some sinister or improper motive and in violation of the public trust.
The first allegation is that the annual meeting commenced April 11, 1899, and continued to March 30, 1900; that the next annual meeting commenced April 10, 1900, and continued to April 1, 1901, and no other annual meetings were held during the period covered by said claims; that said defendant Jones illegally charged for mileage for each day's attendance at the said two annual meetings of the board. I take it that the illegally charged mileage is a violation of section 23 of the County Law (Laws of 1892, chap. 686, as amd. by Laws of 1895, chap. 480, and Laws of 1900, chap. 529). The demurrer may be held to admit that Jones charged a daily mileage, and that the board audited such charges. But there is no allegation that both of the other defendants, as members of the board, audited such charges. The mere statement in brackets on the copies of the bills annexed to the complaint, that all of the supervisors were presen and voting, cannot be held as equivalent to such an allegation.
The second allegation that Mr. Jones presented a bill for committee work or for other alleged services when no such duties were committed to him or to any committee by the board, which was audited by the board, would warrant the conclusion that the pleader intended to charge that Jones and one of the other defendants, either Cox or Willets, audited a bill for which they must have known there was no legal basis, but not that all three did this thing for the reason that two members, being a majority of the board, constitute a quorum (Laws of 1892, chap. 686, § 10), and, therefore, one of the two defendants other than Jones may have supposed that the work done by Jones was authorized at a meeting when he was absent.
As to the allegation that the defendant Jones illegally charged four dollars a day for alleged attendance "at meetings of the Board when he was not in attendance or when no meetings were held," it may be said: He, Jones, may have made illegal charges for meetings when no meetings were held, and yet one of the other two defendants may have audited the charge believing that it referred to meetings when there was a quorum present although he was absent. If there was a direct allegation that Jones made a charge when he was not in attendance, then it might be contended that both of the other defendants must have known of the fact because, Jones being absent, the other two must have been present to constitute a quorum; but the allegation is simply an alternative, as I have shown. The allegations that the acts were fraudulent or collusive or in breach of trust are conclusions and are not averments of issuable facts. ( Talcott v. City of Buffalo, 125 N.Y. 280; Kittinger v. Buffalo Traction Co., 160 id. 377, 387; Wood v. Amory, 105 id. 278; Barhite v. Home Telephone Co., 50 App. Div. 25.)
The judgment should be affirmed, with costs.
GOODRICH, P.J., BARTLETT and HIRSCHBERG, JJ., concurred; HOOKER, J., not voting.
Interlocutory judgment affirmed, with costs.