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People ex rel. Acheson v. Bullard

Supreme Court of New York, Appellate Division

July 11, 1911

THE PEOPLE OF THE STATE OF NEW YORK ex rel. THOMAS J. ACHESON, Relator,
v.
HENRY BULLARD and Others, Individually and as Members of the Town Board of the Town of Philadelphia, Jefferson County, N.Y. , Respondents.

CERTIORARI issued out of the Supreme Court, and attested on the 4th day of February, 1911, directed to Henry Bullard and others, individually and as members of the town board of the town of Philadelphia, N.Y. , directing them to certify and

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return to the office of the clerk of the county of Jefferson all and singular their proceedings had in refusing to allow certain claims of the relator against the town.

COUNSEL

Purcell, Cullen & Purcell [Henry Purcell, Jr., of counsel], for the relator.

J. Frank La Rue [George W. Reeves of counsel], for the respondents.

ROBSON, J.:

The relator, Thomas J. Acheson, was the supervisor of the town of Philadelphia continuously from the year 1899 down to and including the 10th day of January, 1911, the date of presentation of his petition for the writ. In November, 1910, he presented to the town board for audit three verified claims for his fees for paying out and disbursing as such supervisor moneys of the town. One of these claims was for fees for receiving and disbursing the moneys in payment of the schedule of town accounts for the years 1905 to 1908, inclusive, in which the amount received and disbursed for each year was separately stated with the amount of fees claimed for each year, the aggregate of which was $50.81. Another was for fees for receiving and disbursing during the period from the year 1907 to and including March 23, 1910, the sum of $26,265.66, being the town hall fund. The amount of this claim was $262.65. The third claim was for fees for receiving and paying out the railroad fund belonging to said town, amounting to $2,100 for each of the years 1905 to 1908, inclusive. The amount of this claim as presented was $84. This latter claim it is conceded by the relator was erroneous and excessive in that the amount of this fund paid out by him in the year 1907 was $1,450 instead of $2,100. This error in the claim is set forth in his petition; and he therein states that this claim should have been allowed at $77.50 instead of $84, the amount claimed.

Relator's claim to these fees is made under subdivision 3 of section 178 of the Town Law (Gen. Laws, chap. 20 [Laws of 1890, chap. 569], as amd. by Laws of 1904, chap 546, and Laws of 1905, chap. 642). Prior to the amendment of this section in 1904, which added subdivision 3 thereto, a supervisor was not entitled

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to any compensation for paying out town moneys, except the per diem allowance theretofore provided. ( People ex rel. Keeffe v. Town Auditors, 24 A.D. 579; affd., 156 N.Y. 689.) By this subdivision it is provided that a supervisor is entitled to be allowed and paid, in the same manner as other town charges are allowed and paid, a fee of one per centum on all moneys paid out by him as such supervisor, including moneys paid out for purposes particularly specified in the act, and excepting moneys expended under the Highway Law and moneys delivered to his successor in office. As these fees are to be allowed and paid in the same way as other town charges are allowed and paid, a claim for such fees must be presented to the auditing board and the claim audited. But the right of a supervisor to these fees is as absolute as the right of a salaried official to his salary. The difference is only that the compensation for services by salary would be 'a fixed and certain sum, and that by fees uncertain.' (MacVeany v. Mayor, etc., 80 N.Y. 185, 193; Nichols v. MacLean, 101 id. 526, 533.) As was said in People ex rel. Ryan v. Green (5 Daly, 254, 269): 'The fees or salary of office are 'quicquid honorarium,' and accrue from mere possession of the office.' If, therefore, the relator as supervisor properly paid out for the town the moneys set out in his various claims he became entitled to a fee of one per centum thereon, his right thereto accruing as an emolument of his office. In petition he alleges that he did actually pay out for the town the sums upon which his claims for fees are based, except in regard to the railroad fund to which I have already referred. Unless this statement in the petition be controverted in the return to the writ it must be taken as true. (People ex rel. Village of Brockport v. Sutphin, 166 N.Y. 163.) In their return respondents do 'deny that the said Town of Philadelphia is indebted to the relator in the amounts set forth in said writ, or in any amount.' This statement is in no sense a denial of the fact alleged in the petition that the relator had paid out for the town the several sums therein stated. Besides this, the only denial that relator has paid out for the town the sums he has alleged in the petition is the statement that in the town schedule account he has included as paid out by him for those years sums aggregating $52.50, which it is alleged he fraudulently

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charged as payments in behalf of the town, whereas in fact he converted the several amounts to his own use. It follows that the amounts which it must be assumed respondents admit were paid out by relator are as follows: For town schedule accounts, $5,049.57; for town hall fund, $26,265.66; for railroad fund, $7,750. Upon these sums he is, therefore, presumptively entitled to his fee of one per centum.

The respondents further state in their return that in auditing and disallowing relator's claims they believed that he had already taken his fees from town funds in his hands and charged the same to the town. This is stated only as a belief and not as a conclusion of fact. Clearly the facts alleged in the return upon which this belief is stated to have been based are insufficient to support a finding or conclusion that he had so taken his fees. They furnish food for suspicion and conjecture, but were apparently not persuasive enough to lead even the town board farther than a belief that such was the fact. Further facts with knowledge of which respondents allege they acted in disallowing the claims are that they had ascertained through the medium of an accountant's examination of the books kept by relator as supervisor that he had received certain sums of town moneys for which he had failed to account, and that he had charged the town with various sums as paid by him on fictitious or exaggerated claims. Specific statements of these items for which he failed to account, and of the overcharges, are set forth in the return; all of these sums he is alleged to have converted to his own use. It is further charged that he did not keep accurate and honest books and did not make honest accounts to the town board. This allegation is specialized by statements of specific instances of dereliction. Taking these charges as true, no legal ground for disallowing his claim for fees is shown. As was said by this ...


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