People ex Rel. Jonas v. Town Auditors

Full title: THE PEOPLE OF THE STATE OF NEW YORK ex rel. BERNARD JONAS, Relator, v …

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

Date published: Mar 1, 1900

49 App. Div. 4 (N.Y. App. Div. 1900)

63 N.Y.S. 114

Opinion

March Term, 1900.

Frederick M. Mathews, for the relator.

Fred Ingraham, for the respondent.

WOODWARD, J.:

We are of the opinion that the relator has mistaken his remedy, or that he has delayed its application until it is now too late to be of avail to him. On or about the 1st day of December, 1898, he presented his bill to the board of town auditors of the town of Hempstead for the rental of a certain building which has been used for town purposes. This bill was rejected by the board, and on the 22d day of December, 1898, the board completed its audit and filed its certificate and abstracts with the supervisor of the town and adjourned sine die. On the 19th day of April, 1899, the relator petitioned this court to cause to issue the writ of certiorari, which is now before us for review.

The rule is well established in this State that to secure a review of the action of a board of town auditors by certiorari, the writ must be obtained while yet the board retains jurisdiction of the proceedings ( People ex rel. Cochran v. Town Auditors, 74 Hun, 83, 88); and as the writ in question was served upon the board after the certificate and abstracts had been delivered to the supervisor, and the board had adjourned sine die, we are of opinion that the writ is ineffectual and fruitless. ( Osterhoudt v. Rigney, 98 N.Y. 222, 230; People ex rel. Rice v. Auditors, 65 Hun, 414, 418; People ex rel. Weekes v. Supervisors of Queens Co., 82 N.Y. 275.)

If the contract with the town is valid, the relator is entitled to have it allowed. ( People ex rel. Morrison v. Supervisors, 56 Hun, 459.) If there has been no adjudication by the town board upon the merits, the relator will be entitled to present the bill for audit to the incoming town board ( Osterhoudt v. Rigney, supra, 234; People ex rel. Haerle v. Supervisors, 31 App. Div. 557), or the relator may maintain an action thereon to enforce the liability created by the contract. (Town Law, § 182, chap. 569, Laws of 1890.)

For reasons already stated, this proceeding cannot be maintained. The writ should, therefore, be quashed.

All concurred.

Writ of certiorari dismissed, with ten dollars costs and disbursements.