People ex Rel. Fisher v. Bd. of Supervisors

Full title: THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE A. FISHER, Relator, v …

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Oct 1, 1905

108 App. Div. 83 (N.Y. App. Div. 1905)

95 N.Y.S. 458

Opinion

October, 1905.

Albert C. Tennant and Wagner Fisher, for the relator.

Alexander Neish, for the respondent.

HOUGHTON, J.:

The relator was elected district attorney of the county of Delaware in the fall of 1898 and his term of three years began on the first of the following January.

The board of supervisors of Delaware county for many years had fixed the salary of relator's predecessors in office at $1,000 on the stipulation that in addition to the strict duties of district attorney the incumbent of the office should act as counsel for the board of supervisors during its sessions. In 1892 Mr. White had been elected to that office, and by stipulation with him the salary was fixed at $1,300 on condition that in addition to his duties as district attorney and counsel for the board of supervisors at its sessions, he should act as attorney for the board in all civil actions and special proceedings then pending or thereafter brought by or against the board of supervisors or the county treasurer. This arrangement was made in view of the fact that large sums had been paid by the county to attorneys as counsel for the board of supervisors and the county treasurer in proceedings brought against them, and it was thought that a large saving to the county could be made in this way. Mr. White held the office for two terms under this arrangement.

At a meeting of the board between the election of relator and his taking office a conference by a committee of the board was had with him and, as was said, "in view of the fact that * * * there does not appear now to be as much civil business against the county in sight as formerly and * * * that the County Superintendent of the Poor has been employing counsel" at considerable expense, relator agreed to act as counsel to the superintendent of the poor in addition to the board of supervisors and the county treasurer, and the committee on salaries made a recommendation in the following form: "We, therefore, recommend that the salary of the district attorney-elect be fixed at thirteen hundred dollars per annum (together with such expenses as are allowed by law and as heretofore allowed) being $1,000 for his services as district attorney proper and as counsel for the Board of Supervisors during their sessions, and $300 for acting as attorney in all civil actions and proceedings now pending, or hereafter during his term brought against the Board of Supervisors or the County Treasurer, and as counsel for the Superintendent of the Poor of the county. The said $1300 to be his full compensation for all of the above-mentioned services (aside from expenses), and to be paid to him quarterly by the County Treasurer of the county."

This recommendation was duly adopted by the board.

On the 17th of April, 1899, the Legislature enacted chapter 336 of the laws of that year, conferring jurisdiction upon the Court of Claims to hear, audit and determine all alleged claims of the several counties containing towns, villages or cities bonded to aid in the construction of any railroad passing through them, on account of the payment to the State of the State taxes collected from such railroads within such localities.

The county of Delaware contained such towns, and in the following November the board of supervisors, by resolution, appointed a committee of three to examine and ascertain what sums, if any, the county of Delaware and the several towns therein were entitled to under such act; and they were empowered to institute such proceedings before the Court of Claims as might be necessary to recover such sum. This committee conferred with the relator, and such proceedings brought by him in behalf of the county as resulted in a judgment in its favor against the State for $35,414.75, which was entered on the 27th day of December, 1904.

The relator was re-elected district attorney in the fall of 1901, and prior to the beginning of his term on the first of January following, the board of supervisors fixed his salary at $1,000 for his services as district attorney proper and as counsel for the board of supervisors during its sessions, and $300 for acting as attorney in all civil actions and proceedings then pending or thereafter brought by or against the county of Delaware, the board of supervisors, or the county treasurer during his term of office, stipulating that said amount of $1,300 be in full for all such specified services.

The record discloses that most of the work with respect to the claim of the county against the State was done during relator's first term, there only remaining the entry of judgment and the details connected therewith to be performed during his second term of office. The acting as counsel during his second term to the superintendent of the poor of the county was omitted.

The expenses incurred by the relator had been annually adjusted and paid, and as the matter was about to be closed by the entry of judgment, relator presented to the board of supervisors a bill for $1,770.74, being five per cent upon the amount recovered, which was wholly rejected upon the ground that nothing was due him for services, because the services performed by him in relation to the claim were included in those which he had agreed to perform in consideration of the addition of $300 to his salary annually.

It is to review the correctness of this interpretation that this proceeding is brought.

With respect to the services performed in relation to the claim against the State for back taxes, during relator's second term of office, we think the board was correct.

The language adopted by the board in fixing relator's salary for the term beginning January 1, 1902, was quite specific and quite different from that used by it at the session of 1898. The language is: "$300 for acting as attorney in all civil actions and proceedings now pending or hereafter brought by or against the county of Delaware, the Board of Supervisors or the County Treasurer." The county of Delaware is specifically mentioned, and actions and proceedings then pending by as well as against are included. The acceptance by the relator of the $300 annually debarred him from making any claim against the county for services performed in its behalf in proceedings instituted by it or against it; and it must be said that the relator had no claim for any services performed by him after January 1, 1902, with respect to collecting the $35,000 back taxes from the State, as well as for any other services performed for the county or any of its specified officers.

With regard, however, to the services performed by him in collecting the back taxes during his first term of office we think the situation is different.

It was assumed that for the $1,000 he would act as counsel to the board of supervisors during its sessions as well as perform the duties strictly pertaining to the office of district attorney. The $300 added was said to be for acting as attorney in all civil actions and proceedings now pending, or hereafter during his term brought against the board of supervisors or the county treasurer, and acting as counsel for the superintendent of the poor of the county.

There had been paid out, as was said by the committee in its report recommending this arrangement, by the superintendent of the poor from $200 to $300 annually in attorneys' fees. The relator assented to adding the superintendent of the poor to his list of county officers for whom he should act as counsel and attorney. Inducement for this was that the county appeared to be at that time quite free from litigation brought against it. There does not appear to have been any litigation in its favor which relator's predecessor had instituted or was carrying on. Neither the relator nor the board of supervisors knew, or apparently had any reason to believe, that the county would be given an opportunity to recover the large sum which it had erroneously paid to the State in taxes. It was not until after whatever bargain the relator had made with the county that the Legislature passed the act which permitted the county to file and prosecute its claim therefor.

The proper presentation of such a claim necessarily involved considerable work. In order to hold that the services of the relator were included in his agreement, a proceeding not in the contemplation of either party, and of considerable magnitude, must be read into his contract. Reading the contract strictly, services for the county of Delaware were not included in it at all except so far as the county was interested through its board of supervisors, treasurer and superintendent of the poor. The word against only is used with respect to the board and the treasurer. As to the superintendent of the poor, he was to act as his counsel, which would undoubtedly include necessary proceedings in his behalf as well as those brought against him.

In Delaware, Lackawanna Western R.R. Co. v. Bowns ( 58 N.Y. 579), ALLEN, J., says: "In passing upon stipulations in contracts, qualifications and exceptions are frequently implied, and are necessary to give effect to the intent of parties, as such intent can be collected from the whole contract, examined in view of the circumstances under which it was made, and the purposes to be accomplished and the business to which it relates."

The respondent insists that because the preamble in the report of the committee on salaries for the season of 1898 shows that Mr. White had acted as counsel in proceedings both by and against the board of supervisors and the county treasurer, that fact throws light on what was meant by the recommendation of the committee in adding $300 to relator's salary, and demonstrates the correctness of the respondent's interpretation of the agreement and justifies the action of the board in wholly rejecting relator's claim. In this we do not concur. Nor do we concur in the further contention that the committee appointed by the board of supervisors to investigate and prosecute the claim against the State for back taxes had no power to employ the relator. They were directed to institute such proceedings before the Court of Claims as might be necessary. The services of an attorney were quite necessary for this purpose, and the county has had the benefit of relator's services and audited and paid the expenses which he incurred in the presentation and prosecution of the claim.

It follows that the determination of the board of supervisors in wholly rejecting relator's bill and refusing to audit his claim for services performed during his first term of office was erroneous. He was entitled to have his claim for services performed during that period passed upon and audited.

The determination of the board of supervisors with respect to the claim of relator for services performed during his first term of office and to January 1, 1902, is reversed, and the matter remitted to the board of supervisors of Delaware county for audit, with fifty dollars costs and disbursements to relator.

All concurred.

Determination of the board of supervisors with respect of the claim of relator for services performed during his first term of office and to January 1, 1902, reversed, and matter remitted to the board of supervisors of Delaware county for audit, with fifty dollars costs and disbursements to relator.