George Crane Morehouse.

The supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe online

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Online LibraryGeorge Crane MorehouseThe supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe → online text (page 38 of 96)
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settle the amount to be allowed.


Where a bill is presented for services rendered to the county, the board of
supervisors — unless the compensation for such services be fixed by law, author-
ity, custom or binding contract — have to consider and pass upon the charges, and
allow such sum as, in their judgment, is right and proper. In such cases they
have a discretion, which will not be interfered with by a mandamus directing how
that discretion shall be exercised.

People V. Supervisors of Cortland, 58 Barb. 139 ; S. C, 40 How. 63.

If the statute prescribes the sum to be received for such services, the board are
required to allow the bill according to such statute. They have no discretion over
it. If the sum is fixed by a binding contract, the board are equally bound to
allow the bill in accordance therewith.

343 Supervisors' Manual.

An individual having been employed by a county clerk or surrogate to do his
printing, at an agreed price, such employment being within the scope of the
clerk's or surrogate's authority, and the sum agreed to be paid being no more than
a reasonable compensation for the services, the board of supervisors are not at
liberty to interfere with such contract, but should cause to be levied and paid the
amount due thereon.


The relator having done printing for the sheriff, at his request, but without any
contract as to the price, such printing consisting of legal notices, required by law
to be published, held, that he was entitled to charge therefor the sum allowed by
law; and that the board of supervisors should have allowed him that amount,
without any deduction.


Where the statute allows an individual to collect, for a service rendered the
county, not more than a sum specified, he cannot be compelled to take less.


After a board of supervisors had passed upon an account presented by the
relator, it caused to be made and delivered to him an order on the treasurer, for
the payment of the amount allowed. The relator refused to receive it in full of
his claim, and notified the person handing it to him that he should at once com-
mence a proceeding to compel the board to allow him the balance claimed. He
subsequently tendered back the order to the same person, who refused to receive
it. He afterward received and retained the avails of the order. Held, that the
relator was not estopped, by this act, from disputing the correctness of the action
of the board.


The acceptance of the amount audited^ precludes the claimant from further
prosecuting the claim for the residue of the bill.

People, ex rel. McDonough, v. Superrisors, 33 Hun, 305 ; People, ex rel. Brown, v.
Supervisors of Herkimer Co., 3 How. (N. S.) 241.

A legal claim against a county is not made so by its audit by the board of super-
visors ; what are and what are not county charges are settled by law; and when
the board of supervisors determine the amount of the debt due from the county,
resulting from services rendered or goods furnished which relate to a county
charge, their decision is conclusive, inasmuch as they act judicially.

Whether a claim is a county charge depends upon facts; and, in a proper case,
they may be inquired into upon issues raised on an alternative manda/miis issued
for the payment of the claim.

People, ex rel. Tracy, v. Green, 7 How. 382.

A person can contract with a municipal corporation only through its a/iithorizei
agents and is chargeable with notice of the limitations upon their official authority
imposed by general laws.

Lyddy v. Long Island City, 104 N. T. 218.

Where the common council of a city has no authority to create a liability against
it by express contract, it cannot legalize such a claim by acknowledgment, ratijkOr
tion or otherwise.


The board of excise • * * being charged with duties involving the exercise
of discretion, cannot delegate their authority to be exercised by another.

The board may employ an attorney to conduct any prosecution commenced by
them, but cannot give general authority to such attorney to commence such prose-
cution at his discretion.

Board of Commissioners v. Saokrider, 35 N. T. 154.

Auditing of Accoxjkts. 343

Where a board of supervisors passed a resolution authorizing the employment
of counsel named '• in all matters in litigation " growing out of the equalization
and authorizing him "to take all necessary and proTpet proceedings in the name of
(Ae 6oawc2," subsequently a committee was appointed with full power to do all
things necessary in the litigation. Held, that ample authority was thus conferred to
institute the proceedings.

People, exrel. Supervisors, v. Common Council of Kingston, 101 N. Y. 82.

An application was made by relator to compel the board of town auditors to cer-
tify to the board of supervisors as town cha/rges the amount of a judgment against
relator, as commissioner of highways, in an action brought by him to recover a
penalty from an overseer, and also an amount found due him by a former
board of town auditors; upon the hearing it was admitted that the tills had
been presented to the board in 1885, that they had examined them, decided
that the town was not legally liable to pay for the whole, or any part of them,
and rejected them. Held, that a wri; of mandamus should not be issued, as the
board had made a decision, and that relator's remedy was by certiora/ii and not by

People, exrel. Myers, v. Barnes, 4i Hun, 574.

§ 432. Fourth. Accounts Must be Presented
on, or Before, Some Certain Day.

" The supervisors of the counties of Onondaga, Tioga, Oneida, Fulton, Monroe,
Broome, Delaware, Cayuga, Orange, Jefferson, Richmond, Livingston, Chenango,
Chemung, Ulster, Dutchess, Steuben, Niagara, Columbia and Herkimer, by their
clerks, shall provide boxes with suitable inscriptions thereon, and with openings
in the top, to be kept in the offices of the clerks of said counties and in their
charge under lock and key, in which shall be deposited, by said clerks, all
accounts and claims against said counties, duly verified according to law; and
whenever said boards shall severally for themselves order, the clerks of said
boards shall take from said boxes all bills and accounts against said counties,
which they shall then file and number, and it shall not be lawful for the said boards
of supervisors, in any one year, to audit, as against said counties, any other Oil or
account than such as shall have been deposited in said boxes, or otherwise in
their possession, upon tlie morning of the fourth day of the annual meeting of the
said boards, except bills for the services of supervisors, their clerks and janitors,
and except bills for services or disbursements rendered or made during the
session of the boards."

Laws of 1861, chap. 83, as amended by Laws of 1862, chap. 245.

All officers or trustees, whose duty it is by law to make annual reports to the
boards of supervisors of the several counties named in this act, are hereby re-
quired to make the same within six days from the first day of the organization of
the board, in each year, and if any such officer or trustee willfully neglects or re-
fuses to inake such report, he shall be deemed guilty of a misdemeanor.

Id., §2.
See " Board of Town Auditors."

The clerks of the boards of supervisors of the several counties named in this
act shall annually give notice, in at least two of the newspapers published in
each of the said counties, of the time of holding the annual meeting of said boards
in each year, to be inserted in said papers at least once in each week for four
weeks previous to such meetings, and requiring all persons having bills or
accounts against the said counties to deposit the same with the county clerk, duly
verified, on or before the third day of the next annual meeting of said boards,
and in default thereof, that such bills or accounts will not be audited by said
annual meetings.

Laws of 1861, chap. 8S, 3.

344 SuPKKVisoEs' Manual.

Whenever the board of supervisors of any county of this State shall by resoln-
tion declare that the provisions of this act shall be extended and made applicable
to such county, the provisions of this act shall thereafter be applicable to such

Id., 83 amended by Laws of 1862, chap. 245.

The above provision applies to all claims, whatever their form, which are
required by law to be submitted to the supervisors for audit, save those specific
cally excepted. Thus a judgment, although a legal claim upon the county, must
be so presented.

Burrows v. Monroe, 23 How. 395.

See " Town Auditors."

But bonds issued by town or county need not be presented for audit.

Parker v. Supervisors, 106 N. T. 392.

The determination of the board is not binding upon a claimant whose claim is
presented without his knowledge.

Herrick v. Mayor, 9 N. T. Week. Dig. 179.

If a town's negotiable bonds be lost, it may be compelled to pay the amount due
upon receiving a proper bond of indemnity.

Manhattan Savings Inst. v. Town of East Chester, 44 Hun, 537.
Neither the report of a committeB of the supervisors, setting forth the items of
the claim, nor an official report made by the claimant as a public ofBcer, can be
regarded as a presentation of the claim.

People, exrel. Johnson, v. Supervisors, 9 Abb. (N. S.) 416.

A county treasurer is not authorized to collect from trust funds the fees allowed
him by law for selling lauds for taxes, which are struck ofi to towns, mthovi the
audit of the town boord.

Warren v. Baldwin, 105 N. Y. 534.

Such claim must be presented for audit.


§ 433. Fifth. Accounts Must be Properly
Itexaized and Verified. — No account shall be audited
by any board of town auditors or supervisors, or superintendents of
the poor, for any services or disbursements, unless such account
shall be made out in items and accompanied with an affidavit attached
to and to be filed with such account, made by the person present-
ing or claiming the same, that the items of such account are correct,
and that the disbursements and charges therein have been in fact made
or rendered, or necessary to be made or rendered at that session of
the board, and stating that no part thereof has been paid or satisfied ;
and the chairman of said board, or either of said superintendents, is
hereby authorized to administer any oath required under this

Laws of 1845, chap. 180, as amended by Laws ot 1847, chap, 490; 1 R. S. 845.

Nothing in the preceding section shall be construed to prevent any such board
from disallowing any account in whole or in part, when so rendered and verified.


nor from requiring any other or further evidence of the trnth and propriety
thereof, as such board may think proper,

Unless the account is properly verified the board has no jurisdiction to act
upon it.

Osterhoutv. Bigney, 98 N. Y. 233; Hawley v. Mclntyre, 24 Hun, 459; People v.
Supervisors of Monroe Co., 18 Barb. 567; People, exrel. Johnson, v. Super-
visors, 9 Abb. (N. S.) 416.

If an account is not properly verified it should be returned to the claimant with
notice that he may appear and correct it.

People, ex rel. Sherman, v. Supervisors of St. Lawrence Co., 80 How. 173: People,
exrel. Brown, v. Supervisors of Herkimer Co., 3 How. (Jf. S.) 241; People v.
Supervisors, 45 Hun, 62.

Or if the WU is informal, e. g., in not specifying the name and residence of the
complainant, etc. , it should be allowed to be amended.
People V. Supervisors, 45 Hun, 62.

If the hoa/rd refuse to aUow it to be corrected, it may be compelled to by ma/n-

Where a claim, consisting of separate items, is presented for audit * * * it
is the duty of the board to examine each of the items separately and allow or dis-
allow the same accordingly as it shall be found correct or incorrect. It is error
for the board in such a case to deduct a gross sum from the amount of the claim,
without passing upon or specifically altering any of the items of which it is com-

People, ex rel. Thurston, v. Board of Town Auditors, 20 Hun, 150.

The auditing board must act speciflcaMy on each item of the account presented.
An arbitrary reduction from the gross amount of a bill for various services or
items, is not an audit thereof.

People, exrel. Thurston, v. Board of Town Auditors, 82 N. Y. 80; People, exrel.
Johnson, v. Supervisors, 45 id. 196.

It cannot reject or refuse to audit one item which is a legal charge, on the ground
that it is illegal.

An afBdavit before a commissioner of deeds is sufficient.
People V. O'Reilly, 9 Abb. N. C. 77.

An affidavit, stating that the service was performed, and that no part of the
claim had been paid by the board of supervisors or any one on their behalf, is not

People, exrel. Cagger, v. Supervisors, 2 Abb. (N. S.) 78.

§434. Sixth. If for seT-wces in which no specific compensation
is fixed by law, a just and true statement, in 'v^riting, of the time
actually and necessarily devoted to the performance of such services
should also be produced.

All town and county officers, and all other persons who may present to the
board of supervisors accounts for their services, to be audited and allowed, shall,
before any such account or claim shall be passed upon or allowed, exhibit a just
and true statement in writing of the nature of the service performed by them.

2 R. S. 978, S 1.

In all cases in which a specific compensationjfor any service is not provided by
law, the officer or person presenting an account therefor shall also exhibit, in
writing, a just and true statement of the time actually and necessarily devoted to
the performance of such services.

''•'''■ 44

346 SupEEVisoBs' Manual.

§ 435. Seventh. Tlie Account claimed Must
be a Le^al Cliarge.— The statute defines what are " legal

As to towns, see " Town Charges," §§ 457-473, post.
As to counties, see "County Charges, §§ 4S3-5S5," post.

And does not include such demands as have their origin in "torts."

McClurev. Board of Supervisors, i Abb. N. S. 202: MoClure v. Board of Super-
visors, 50 Barb. 594; Howell v. City of Bufealo, 15 N. T. 512; McGaffin v. City of
Cohoes, 74id. 387; Newman v. Supervisors of Livingston Co., 45 id. 678-689;
Quinlan v. City of Utica, 11 Hun, 217; affirmed, 74 N. Y. 603; Ross v. Super-
visors, 38 Hun, 20.

A "Tort " is a private or civil wrong or injury. A wrong independent of

Bouvier's Diet.

Such as damages from riots; injuries to person or property; the wrongful tak-
ing of property; injury to personal or real property; negligence and the like.
The right of action therefor is'generally founded, either upon:

1st. An invasion of some legal right of person or property; or

2d. On the violation of some duty toward the public, which has resulted in some
damage to the plaintiff or claimant; or

3d. In the infraction of some private duty or obligation which has been pro-
ductive of damage to the complaining party.

2 Waifs Law & Pr. 418.

The first two are the ones involved in town or county charges.

Claims for torts ought not to be presented for audit. But, in cases of damages
to persons, or property, by reason of defective highways, or bridges, the board of
town auditors, by special statute, have power to audit and pay such claim, if they
deem it just so to do, as a town charge, an amount in settlement of any one
claim not to exceed $500, and any judgment already recovered and not paid, and
any judgment hereafter recovered against any commissioner or commissioners of
highways for such damages, whenever they shall be satisfied that the commis-
sioner or commissioners against whom the same was rendered, have acted in good
faith, and the defect causing such damage shall not have been caused by the
willful misconduct or neglect of the commissioner or commissioners. They may
be convened in special session for such purpose by the supervisor, or in his ab-
sence by the town clerk, upon the written request of the claimant or commis-
sioner of highways.

§ 4, chap. 700, Laws 1881, as amended by chap. 146, Laws 1889.

The statute is set out in full. See " Defective Bridges," post, § 858.

In each year from 1875 to and including 1879, the board of super-
visors of the county of Cayuga included in the taxes imposed upon
the taxable property of the city and town of Auburn, in that county,
the whole amount of the fees and charges audited and allowed by
the said board of supervisors to the sheriff for receiving, keeping
and boarding prisoners committed to jail by the courts of special
sessions and police justices in the said city, while the statute required
that the said amount should be assessed upon the taxable property
of the county as a county charge. This action was brought by the
plaintiff to recover the illegal amounts so added to the taxes imposed
upon the property of the plaintiff's assignors, and by them paid to
the city treasurer and tax receiver, by whom they were paid to the
sheriff upon checks drawn by the supervisors of Auburn.


Held, that as the board of supervisors had no statutory authority
to impose these taxes upon the city their action was wholly without
jurisdiction, and that the plaintiff could maintain this action to re-
cover the amounts so paid without first procuring the assessment to
be vacated in proceedings instituted directly for that purpose.

That as the plaintiffs claim was founded upon the illegal and
wrongful action of the board of supervisors, it was not necessary
for him to present it to that board for audit before bringing this

Rosa V. Supervisors, 88 Hun, 20.

Where an assessment for a local improvement is valid upon its
face, but is in fact void because the assessors had not jurisdiction to
impose it, an action may be maintained to recover bacK money invol-
untarily paid in satisfaction thereof without first having the assess-
ment set aside or vacated.

Payment to an officer who has a valid warrant for the collection
of such an assessment and who threatens to execute the same is not
a voluntary payment.

' No demand for a return of the money so paid is necessary before
the commencement of an action to recover the same.

Brueoher v. Tillage of Port Chester, 101 N. V . 240.

Under the provision of the act (chapter 296, Laws of 1874) sub-
jecting the property of the N. T. & O. M. R. R. Co. to taxation,
and appropriating the amount of the county taxes thereon, in any
town which has issued bonds in aid of the construction of the road
of said company, to such town, to be devoted to the payment of its
bonds, after any such tax has been collected, the moneys belong to
the town, and any diversion thereof from their lawful object is an
injury to the rights of the town, which may be protected by an ap-
propriate action in its behalf.

Bridges V. Board of Supervisors of Sullivan County, 92 N. Y. 570.

Since the act of 1855 (Laws of 1855, chapter 427) upon return
by the town collector of a tax, laid upon real estate, uncollected for
want of goods and chattels of which to make the same, the land is
to be classed as non-resident, as to such unpaid tax, and all proceed-
ings for the collection thereof must thereafter be had as if it was
the land of a non-resident, pursuant to that act.

Where the board of supervisors assume to add the amount of a
tax so returned to the assessment-roll of residents, and thus charge
it upon one who has succeeded to the occupation of the land as-
sessed, their action is without jurisdiction and void, and the tax thus
laid against him is illegal.

If such illegal tax is collected and paid into the treasury of a
county, an action as for money had and received will lie against the
county for its recovery.

The money having come to the treasury of the county by the
wrono-ful act and with the knowledge of its officers, no demand is

348 Supervisors' Manual.

necessary before suit, nor is it necessary to present the claim there-
for to the board of supervisors for audit and allowance.

Newman v. Supervisors of Livingston County, 45 N. Y. 676.

A county can only be made liable for money alleged to have been
wrongfully demanded and collected or had and received by it for the
benefit of another, where the moneys have come to its treasury for
its use, or where it has had, or might have had, the benefit thereof.

In pursuance of the provisions of the act appointing commission-
ers for draining certain lands in the town of Royalton, Niagara
county (chapter 774, Laws of 18t)7), defendant caused the expenses
to be assessed upon the owners of lands benefited, among whom was
plaintiff. The assessment was levied and collected and paid over to
the treasurer of the county, and by him paid to the commissionere,
as prescribed by the act. The proceedings of the commissioners
having been vacated on certiorari, this action was brought to re-
cover the amount collected, as for moneys wrongfully demanded and
collected by defendant, and by it had and received for plaintiff's use
and benefit. Held, that the county, by its board of supervisors, ex-
ercised simply an agency under the act ; that the treasurer, in the
receipt and disbursement of the money, acted as agent and treasurer
of the commissioners, not of the county ; the money paid did not go
into the county treasury, and was never, in any sense, received, ap-
propriated by or in the possession of defendant ; and, tlierefore, that
the action could not be maintained.

Dewey v. Supervisors of Niagara County, 62 N. Y. 294.

Where, however, the said property was assessed by the town as-
sessors and the city paid the tax to the town collector, who paid it
over to the county treasurer, by whom it was applied " in the same
manner as other taxes assessed and collected in said town," i. «., a
portion paid to the authorities of the town, a portion to the proper
State officers, and the residue retained for coimty purposes. Held,
that an action could not be maintained against the town to recover
back the tax, or that portion thereof paid over to the town officers,
as the town has no treasurer, and its officers, to whom the money
was paid, do not represent it, their functions being prescribed by
statute, and the money they received being expended in the per-
formance of official duty.

Chapman v. City of B., 40 N. T. 872; National Bank of C. v. City, of E., 68 id.
49; Newman v. Supervisors of L., 45 id. 676, distinguished.

It seems, however, that the city has a remedy in such case under
the provision of the statute extending the powers of boards of super-
visors (chapter 855, Laws of 1869, as amended by section 5, chapter
695, Laws of 1871), which requires the board of supervisors of a
county, to refund the amount of any tax illegally or improperly

City of R. V. Town of E., 15 Hun, 239, reversed. City of Rochester v. Town of
Rush, SON. Y. 302.

AuDiTi2<fQ OF Accounts. 349

Duty of a county treasurer to invest the taxes paid by a railroad,
as a sinking fund, to pay town bonds issued under chapter 907 of
1869, as amended by chapter 283 of 1871 — the supervisor of a town
may maintain an action to recover such moneys used by the county
treasurer to pay county debts — the county treasurer, in such case, is
liable as trustee, and cannot plead the statute of limitations, althougli
the county may do so. The county is not liable for its wrongful
payment of the State tax to the comptroller.

Wood V. Supervisors of Monroe County, 50 Hun, 1.

As the court of last resort had held that the town was liable
to pay its bonds, the fact that the court of appeals held that
the proceedings taken were insufficient to authorize the commis-
sioners to issue the bonds, was no justification for the refusal of the
defendant to set apart these taxes for the purpose of creating a sink-
ing fnnd, as required by section 4, chapter 907, of 1869, as amended
by chapter 283 of 1871.

That the town was as clearly entitled to the benefits of the act as
though its proceedings to acquire authority to issue bonds had never
been questioned.

That the defendant was liable, in its corporate capacity, for the
moneys so received by the county treasurer and paid out by him,
pursuant to its directions, as for money had and received for the
town's benefit, and that the action fell within section 382 of the
Code of Civil Procedure, which limited the plaintiff's recovery to
the sums misappropriated within six years prior to August 6, 1888,
the date of the submission.

That the relation of the trustee and cestui qtie trust of an express
trust by the voluntary act of the parties did not exist in this case.

Online LibraryGeorge Crane MorehouseThe supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe → online text (page 38 of 96)