Summary
In Georg Serv. Corp. v Town of Summit (28 A.D.2d 578, supra) a contractor's delay of six years between completion of the work and bringing of an action for payment of a claim for extras which the town board of auditors had either refused or neglected to audit was held no bar to suit because negotiations between the parties and the conduct of the town indicated that the contractor had reasonably pursued less litigious means of resolving his difficulties first.
Summary of this case from City of N.Y. v. State of N.YOpinion
May 1, 1967
Appeal from an order of the County Court of Schoharie County which denied appellant's motion for judgment dismissing the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. In this action to recover for the sale and delivery of certain parts used to repair highway machinery owned by the defendant, the plaintiff alleged several transactions between September, 1959 and October, 1961. It is conceded that at various times between 1959 and 1965 plaintiff filed various claims for the amounts owing with the defendant's town Supervisor, clerk and board, but that at all times the defendant, its board, officers and agents failed and neglected to audit the claims so filed. After much unsuccessful negotiation, including talks of compromise, on April 7, 1966 the plaintiff gave written notice to the Town Board and to the Town Clerk that unless its claims were audited and paid by May 10, 1966 an action would be commenced against the town to recover the agreed upon price. The Town Board refused to audit the claims and on May 21 1966 the plaintiff caused a notice of claim to be served upon the defendant. Plaintiff's summons is dated August 11, 1966. Subdivision 3 of section 65 Town of the Town Law provides in part that no action shall be commenced against a town upon a contract unless the claim shall have been filed with the Town Clerk within 6 months and the action commenced within 18 months "after the cause of action thereof shall have accrued". The sole issue presented on this appeal is when did plaintiff's cause of action accrue. Unless otherwise agreed, the purchaser of goods is obligated to pay for the goods received at the time and place of delivery (Personal Property Law, § 123; Uniform Commercial Code, § 2-310). Where, however, the purchaser is a town no obligation to pay for the goods delivered arises "unless an itemized voucher * * * shall have been presented to the town board or town comptroller and shall have been audited and allowed" (Town Law, § 103; Rason Asphalt v. Town of Oyster Bay, 8 Misc.2d 411, mod. on other grounds 6 A.D.2d 810; cf. Edlux Constr. Corp. v. State of New York, 252 App. Div. 373, affd. 277 N.Y. 635). The town's statutory disability to pay for goods prior to an audit must be interpreted as an implied term or condition of the contract. Thus the defendant's failure to pay for plaintiff's goods in 1961 was not wrongful, did not constitute a breach of the contract and did not signal the accrual of plaintiff's cause of action. It is our opinion, however, that by refusing to audit the claims as required by section 103 Town of the Town Law, the defendant might indefinitely forestall the accrual of plaintiff's cause of action. Of course, the plaintiff might by mandamus require the Town Board to audit its claims (17 McQuillin, Municipal Corporations [3rd ed.], p. 514; cf. People ex rel. Hirschberg v. Board of Supervisors, 251 N.Y. 156), but its remedies are not so limited (see New York Catholic Protectory v. Rockland County, 212 N.Y. 311; cf. Kennedy v. County of Queens, 47 App. Div. 250). In our view, the refusal of the defendant's Town Board to audit plaintiff's claim, as demanded, was a breach of an obligation owing to the plaintiff. Order affirmed, with costs. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.