The People ex rel. Martin B. Brown, Appellants, v. Andrew H. Green, Comptroller, etc., Respondent; Same, Appellants, v. Same, Respondent

The People ex rel. Martin B. Brown, Appellants, v. Andrew H. Green, Comptroller, etc., Respondent. Same, Appellants, v. Same, Respondent. (Argued April 7, 1874; decided May 26, 1874.) Under the provisions of the act of 1870, “in relation to supervisors of the county of New York ” (§6, chap. 190, Laws óf 1870), declaring that “all moneys drawn from the treasury by authority of the board of supervisors shall be upon vouchers for the expenditures thereof, examined and allowed by the auditor and approved by the comptroller,” the comptroller cannot be compelled by mandamus to issue his warrant for the payment of an account, audited and allowed by said board, until the auditor has examined and allowed the vouchers. These were appeals from orders of the General Term of the Supreme Court in the first judicial department, affirming orders of Special Term denying motions, on behalf of the relator, for writs of mandamus to compel defendant to issue his warrant for the- payment of certain accounts against the county of New York. The accounts had been audited and allowed by the board of supervisors. The court below held that the relator was not entitled to the relief sought, because he had not demanded and obtained of the auditor an examination and allowance of his vouchers. A. Oakey Hall for the appellants. A peremptory mandamus should issue for the full amount audited by the board of supervisors, and the comptroller has no authority to revise its action. (1 R. S., 367, marg. page; id., 386, § 3, sub. 9; People ex rel. Kelly v. Haws, 12 Abb. Pr., 200-202; People v. Nostrand, 46 N. Y., 376.) John K. Porter for the respondent. No mandamus can issue until there has been an examination and allowance of the claim by the auditor upon vouchers establishing its justice and validity. (People v. Wood, 13 Abb. Pr., 381, 382; 5 Ops. Attys.-Genl., 651, 652; 7 id., 726.) An allegation of an examination and allowance by the auditor of the claim or vouchers is an essential statutory pre-requisite to the duty of action by the comptroller. (Tapping on Mandamus, 314; People v. Haws, 37 Barb., 440, 457; People v. Tremain, 29 id., 96-99; People v. Corn. Council, 3 Abb. [Ct. Apps. Dec.], 502-505.) [MAJORITY — Johnson, J.] Johnson, J. Deferring to the opinion in the case of Outwater, it is only necessary to say in these cases that no mandamus can go to the comptroller until the auditor has examined and allowed the vouchers; for then only are they to be approved by the comptroller. These cases were correctly disposed of in the Supreme Court on proper grounds. The orders should be affirmed. All concur. Orders affirmed.