The People of the State of New York ex rel. The Brooklyn Cooperage Company, Relator, v. Clarence L. King and Others, as Former Town Auditors of the Town of Altamont, in the County of Franklin and State of New York, and Others, Respondents

The People of the State of New York ex rel. The Brooklyn Cooperage Company, Relator, v. Clarence L. King and Others, as Former Town Auditors of the Town of Altamont, in the County of Franklin and State of New York, and Others, Respondents. Third Department, November 14, 1906. Town—when town board may reaudit claim—original presentation of claim defective—presentation of claim without authorization of claimant. If a town board has audited and disallowed a claim,, it has no jurisdiction to pass upon it a second time, but if the claim disallowed was not presented by or on behalf of the' claimant or was improper or defective in form, it may again be presentéd and acted upon by the town board. Thus, when one rendering services to a town in fighting forest fires at the request, of the fire warden has presented an unverified claim which was rejected for informality, the subsequent audit and rejection of a claim presented by the fire warden personally, containing the former claim together with others of a similar nature, but not presented with the authority of the claimant, does not deprive the town board of jurisdiction to pass upon the claim when again presented in proper form by the claimant personally. Moreover, when the claim presented by the fire warden was not properly verified, as required by section 167_of the Town Law, the town board was without jurisdiction to act upon it on the- merits, and thus claims included therein without claimant’s consent may again be acted upon by the board. Certiorari issued out of the Supreme Court and attested on the 29th day of January, 1906, directed to Clarence L. King and others, as former town auditors of the town of Altamont, in the county of Franklin, N. Y.', and others, commanding them to certify and return to the office of the clerk of the county of Franklin all and singular their proceedings had in relation to their disallowance and rejection of a claim-of the relator against such town for lack of jurisdiction to pass upon it. The relator is a corporation engaged in the manufacture of wood alcohol and of cooperage materials at Tapper Lake in the town of Altamont, Franklin county, and employs a large number of men in carrying on its business there. The territory embraced in such town consists largely of wild and unoccupied forest lands, and any lands which are now owned "or which may be hereafter acquired by the State of New York in such town are and will become a part of the forest jireserve of the State. In the months of April, May and June, 1903, there were extensive and destructive tires in" said town which burned over a large area of the forest lands therein, and threatened to extend to other large areas therein and elsewhere. It is claimed by the relator that on the 30th day of April, 1903, it was requested by the fire warden and the assistant or district fire warden of such town to" employ its large force of employees in arresting, preventing and extinguishing such fires, and that .in compliance with .such request the relator did furnish and employ a large number of laborers for á long time for that purpose, and that said town is liable under section 227 of the Forest, Fish and Game Law (Laws of 1900, chap. 20), as amended by section 1- of chapter 519 of the Laws of 1901, for such services. In November, 1903, it presented" a claim to the board of auditors of such town for such’services rendered from April" twenty-ninth to June twentieth, amounting to $5,646.50, for wages paid and supplies given to its men for fighting fire. The claim’bore upon, its face the approval of E. Le Boeuf, fire warden- of such -town. As presented it was not itemized "or verified. Notwithstanding this, the members'of the town board indorsed thereupon' their allowance at the full amount claimed. . It was afterwards verified and had affixed- thereto an itemized statement of the'names of the men and number, of hours’ work performed by' each.’ Thereafter, arid on the fourteenth day of December, said Le Boeuf presented an account to the board, óf town auditors, with his approval indorsed thereon, which account included the relator’s’ claim and the claim of several others for services of men for fighting fire. The claim first presented by the relator was headed, “ Town ■of Altamont, County of Franklin. To Brooklyn Cooperage Co., Tupper Lake, N. Y., Dr.” The claim presented December fourteenth was headed, “ Town of Altamont. - To E. Le Boeuf, Dr., as Fire Warden.”. It is alleged in the return that the board of town .auditors at its December meeting reconsidered its previous action in indorsing the claim, as. first presented with their approval and allowance thereof at $5,646.50 and rescinded the same, and then “on the 26th day of December- 1903, duly considered, audited and disallowed said claim and the whole thereof, and indorsed upon the back óf the same their audit and disallowance, and then signed and duly filed such decision, of all which the relator had due notice.” The".relator then procured the issuance of an alternative Writ of mandamus requiring the board of town auditors to certify its allowance of said claim and file the same with the town clerk, and requiring the supervisor to present such certificate of allowance at the next annual session of the board of supervisors of Franklin county, or show cause why the command of such writ should not be obeyed. ■ A return was' made to such writ,, and the issues raised thereby Were tried before the court, resulting in á decision and order “ that the claim was never properly presented to the Board ; that, as the account was not itemized, it was never presented to the Board as the statute requires, and was never audited or passed upon by the Board for the reason that it was never legally presented. That the act did not go far enough to make an audit of such an improperly presented bill, and that the motion for a non-suit is granted and the writ is quashed and dismissed.” The relator thereafter and on the 20tli day of November, 1905, again presented its itemized claim or account to the board of town auditors in duplicate supported by numerous affidavits and bearing the indorsement thereon of the approval of the fire warden of the town under the date of the 5th day of November, 1903. Said board determined that as said claim had been audited and disallowed in 1903 it had no jurisdiction to pass upon the same, and that if they had jurisdiction they would decide that it was hot a valid claim against the town and indorsed upon or affixed thereto a statement to that, effect, and it is that determination that is sought to be reviewed by this writ. • . . John P. Badger, for the relator. John P: Kellas, for the respondents. [MAJORITY — Chester, J.:] Chester, J.: It is urged by the relator that the final order in the mandamus proceeding is- res judicata betvveen the parties and by the defendants that as that was made at the close of the relator’s proofs it was simply a nonsuit and not a determination upon the merits. From the view we take of the case it is unimportant which of' these contentions is'right, for it is entirely clear to ús, as decided by-the' court in that proceeding, that when the. claim was first presented for audit by the relator it was not in form to give the board jurisdiction to act thereon, except to reject it for informality,- for it was then neither verified .nor itemized as required by law. (Town Law [Laws of 1890, chap. 569], § 167.) It is conceded by the defendants that the question whether the claiin was audited and •disallowed in December, 190.3, was not involved in that litigation, but" only the question as to whether or not.it was legally audited and allowed in November, 1903. We think the determination of the case we are now considering turns wholly upon the question whether or not'there was a legal audit' and disallowance- of the clainuwhen the. board in December,. 1903, assumed to reconsider its former illegal action in indorsing its allowance upon the claim. - ' If .there was then such an audit and disallowance the board was correct in. holding that it had no jurisdiction .to pass upon it a second time. (People ex rel. Myers v. Barnes, 114 N. Y. 317 ; Osterhoudt v. Rigney, 98 id. 222.) But if it was not then presen ted-by or on behalf of the relator and without -its knowledge, or was- improper and defective in form, such presentation is not a bar to a subsequent presentation and audit. (People ex rel. Andrus v. Town Auditors, 33 App. Div. 277.) ■ It cannot be properly said that the action of the board in Decern-' ber,. 1903, was in 'any sense a reconsideration of its former action, for w-liat was then'done related to a distinct and separate presenta-tian by a different party óf a different claim than' that first presented by the relator. -The relator presented no claim in December. The. one then acted upon was not the one presented by the relator in November before,, but was one furnished by Le Boeuf, the fire warden, and which, while- it included the' items of the relator’s claim, also included those of a large number of other claimants, and was. presented in his náme and not that of the relator, and with no apparent or proven authority from the relator to act as its .agent in such presentation. . • In the return to the alternative writ of mandamus made'in 1904, it was alleged that" the' relator did not after'November 5, 1903,' present to or supply the board with “ any items, verified statements of any such claim or properly prepared itemized claim against said town,” which allegation is altogether inconsistent with the claim now made, that it was properly presented for audit on behalf of the relator and disallowed in December, 1903. Moreover it, is not apparent from this record that the relator had any notice that its claim was again to be presented in any form in December, 1903. It is true that in the return it is stated that the relator “ had due notice ” of the reconsideration by the board of its previous action and of i.ts proceedings upon such reconsideration, but this is a mere allegation of a conclusion. There is nothing said as to whether the notice was served upon the relator before of after such alleged reconsideration, nor as to where, or by whom or upon whom such notice was served, nor is there any return of any notice or of any proof of service of any notice 'upon the relator, and the relator denies that it had any knowledge of any presentation or reconsideration until long after it had occurred. Brotó all this it cannot be held that it had due notice, or any notice. FT or was the claim which was presented by Le Boeuf properly verified to give the board jurisdiction to act upon it, upon the merits. It bore only the affidavit of LeBoeuf, “ that the charges are proper'and correct and that no part thereof has been paid or satisfied.” The statute (Town Law, § 167) provides that no account shall be audited unless such account shall be made out in items and accompanied with an affidavit attached thereto, and .to be filed with such account, made by the person presenting or claiming the same, “ that the items of such account are correct and that the disbursements and services charged therein have been in fact made or rendered * * * and stating that no part- thereof has been paid or satisfied.” It was natural, of course,, and commendable for Le Boeuf, who had no connection with the relator or its business and, therefore, no personal knowledge as to whether the items in the account were correct or whether the services charged therein had been in fact rendered, to omit the statement of those facts from the affidavit, but by reason of such omission the affidavit failed to comply with the law. There was and could have been, therefore, no audit and disallowance of the relator’s claim in December, 1903, which would be effectual to operate as a bar to a subsequent presentation of the claim in proper form, (People ex rel. Andrus v. Town Auditors, supra.) ; So far as this record shows, the relator has never had its claim properly presented and audited hy the town board, and the denial' by the board of an audit of the claim when last presented, on the ground of lack of jurisdiction in the board to act .upon it, cannot be sustained. - • ' An opportunity should, therefore, be afforded to the relator to present its. claim in' due form, supported by such proofs as it desires to furnish, in order .that it may exercise its right under -the law to review the determination in case of a disallowance of the claim in whole or in' part. . The determination should be annulléd, with fifty dollars costs and disbursements. All concurred. - - . ‘ Determination annulled, with fifty dollars costs and disbursements.