Adams v. Town of Wheatfield

Upon the appeal by the taxpayers from the audit of plaintiff’s claim by the town board, the supervisors were required to audit anew his account. The statute provides that “such part of said accounts as the board of supervisors shall allow shall be as*740sessed and collected the same as other town charges.” The appellant maintains that the act of the board upon the ,22d of December, in directing that this account be included in the tax roll, constituted an audit of the claim. The claim of the defendant, however, is: First, that to include this item in the tax roll did not constitute an audit of the claim; secondly, if this may be deemed to constitute an audit of the claim, the board has reconsidered and rescinded the same by the adoption of the report of the committee upon January 20th, which report provided for the disallowance of this claim. We think that the account was audited when it was .included in the tax roll. The board was only authorized, under the statute, to include in that tax roll such part of that account as it allowed. That audit was made without investigation, and was an irregular audit. Until corrected, however, it was a binding audit. Upon November 23d the accounts of the plaintiff were sent to a committee for investigation. Upon January 20th that committee reported to disallow this account for which this action is brought. It is true that no formal resolution was passed rescinding the audit of December 22d. The adoption, however, of the report of the committee that this account be disallowed, of itself, operated as a rescission of that audit of December 22d by the board, and as a reaudit and disallowance of the plaintiff’s claim. After such disallowance the collector, although the moneys had been raised therefor, had no authority to pay the same to the plaintiff, and the plaintiff has no cause of action against the town therefor.

It is contended by the appellant, first, that, after the appeal taken by the taxpayers from the audit by the town board of the plaintiff’s account, the town clerk did not transmit the account to the board of supervisors, to be audited and allowed by them, until December Gth; that the resolution sending to the committee on constables’ accounts the accounts of the plaintiff for investigation was passed upon November 23d; that this account, therefore, was not before the committee, and they had no power to act thereupon. That this account was investigated by that committee is not disputed. That the plaintiff and his attorney appeared before the committee upon that investigation is not questioned. The plaintiff has acquiesced in the consideration by this committee of this account. After the report disallowing the account, the objection comes too late that it was not properly before them for consideration.

It is further insisted by the appellant that the mere adoption by the board of supervisors of the report of a committee does not constitute an audit or disallowance of the plaintiff’s claim. That it was understood to be such an audit and disallowance by the supervisors themselves, we have no doubt. Their intention is the ultimate fact to be ascertained. That this was a legal expression of their intention would seem evident, both upon principle and authority. In People v. Gallup, 12 Abb. N. C. 74, it is held that legislation may be in the form of a resolution reported by a committee, and adopted by a vote of the board in passing upon the report. We are satisfied that the board has expressed effectually its intention to reaudit and disallow the plaintiff’s account.

*741The appellant further urges that, after having once audited this account, the board is without power to reconsider its action and reaudit the same. This objection would seem to be answered by the authority of People v. Board of Sup’rs of Broome Co., 65 N, Y. 222. . It is there held that “a board of supervisors has power to rescind a resolution auditing and allowing a claim against the county, upon discovery of mistake or error.”

It is again objected by the appellant that the adoption of the report of this committee was illegal as a reaudit, because the evidence taken before the committee was not before the board, and that it could not, therefore, legally act upon the report of the committee. Whether or not this action of the board constituted a lawful audit and disallowance of the plaintiff’s claim, it operated as a rescission of its action in allowing the claim theretofore. The reaudit was just as regular and just as valid as was the original audit when this account was included in the tax roll. It was so included, without investigation or examination, while an appeal was pending. We have held that it nevertheless constituted an audit, until it was corrected, either by the order of the court, or voluntarily. By the same reasoning, the final action of the board in adopting the report of this committee constitutes a reaudit and disallowance of this claim. If the reaudit is irregular, it can be corrected by a writ of mandamus to compel them properly to reaudit the claim.

It is once more urged that, if this can be held to be a reaudit, it is illegal, as a trial of the title to an office collaterally. But the learned referee has pointed out that the correction of such an error is through certiorari, and not by action. These, views render unnecessary a discussion of the other questions raised by counsel, and lead to an affirmance of the judgment entered upon the report of the referee.

Judgment affirmed, with costs. All concur, except McLEKNAAT, J., who dissents.