(86 Misc. Rep. 72)

#### MURPHY v. TOWN OF BENTON.

(Supreme Court, Trial Term, Yates County.

June 20, 1914.)

1, Towns (§ 62*)—Claims Against Town—Bemedy.

One having an unliquidated claim against a town, who presented it to the town board, which examined the claim and rejected it, cannot maintain an independent action against the town; his remedy being certiorari to review the determination of the board, or mandamus to compel the board to audit, in case of nonaction, for the town board acts in a judicial capacity in disposing of the claim, and its determination is conclusive until reversed or set aside.

[Ed. Note.—For other cases, see Towns, Cent. Dig. §§ 105-109; Dec. Dig. § 62.*]

2. Towns (§ 62*)—Town Board—Nature of Body.

The town board is a continuing body, and hence its adjournment after the denial of an unliquidated claim will not prevent a party from obtaining certiorari to review its action.

[Ed. Note.—For other cases, see Towns, Cent. Dig. §§ 105-109; Dec. Dig. § 62.*]

Action by John T. Murphy against the Town of Benton. There was a verdict for plaintiff, and defendant moves for a new trial.

Motion granted.

Spencer F. Lincoln, of Penn Yan, for plaintiff.

M. A. Leary, of Penn Yan, for defendant.

*

For other cases see same topic *&*§ number in Dec. *&*Am. Digs. 1907 to date, & Rep’r Indexes

CLARK, J.

In 1913 plaintiff had residing in his family a laborer named Larsen, who was a resident of the town of Benton, and who was taken ill at plaintiff’s home with diphtheria. The health officer of the town was promptly notified, and he took charge of the case, called the board of health of the town together, and was authorized by such board to take such steps as he deemed necessary for the care of the man afflicted with this contagious disease, and for the safety and health of the residents of the town in preventing the spread of that disease. Thereafter the health officer quarantined plaintiff’s home and employed him to care for said invalid, and promised plaintiff that he should be paid for such services, and any expenses he incurred in caring for the patient he should be compensated for; also for certain personal property which had been in the room occupied by the sick man, and which the health officer ordered destroyed.

Some months after the patient recovered his health, plaintiff prepared an itemized statement of his bill, verified the same, and presented it to the town board of the town of Benton, and on the 7th day of November, 1913, said board considered the bill and rejected it, and filed with the clerk its certificate of rejection, and certified the claim so presented and rejected to the board of supervisors of Yates county. More than 30 days after the bill was rejected, this action was begun for the recovery of the various amounts as stated in the bill so presented and rejected. On the trial, after plaintiff had concluded his evidence and rested, a motion was made for a nonsuit, upon the ground, *274among others, that plaintiff had mistaken his remedy. The motion was at that time denied, and the trial proceeded, and resulted in a verdict for the plaintiff.

[1] Assuming that under the evidence in this case the claim of plaintiff is a just, proper, and legal one against the town to such an amount as he can prove his services and other items were reasonably worth, it seems to me that the position taken by defendant, that plaintiff had mistaken his remedy, must be sustained. This claim, while made in pursuance of an alleged contract with the health officer of the town of Benton, is an unliquidated one, and should be audited and collected in the same manner as other similar claims. This bill was presented to the town board, and it was examined and considered by that body, and was rejected. That was an audit of the claim. The town board in what it did acted judicially. It was a judicial tribunal having jurisdiction in the matter, and that decision must be regarded as final, unless it is reversed or set aside. If the town board had paid no attention to the claim, plaintiff’s remedy would have been by writ of mandamus to compel an audit; but the' claim having been audited and rejected by a duly constituted board possessing quasi judicial powers, if plaintiff felt aggrieved, his remedy was by a writ of certiorari to review the action of the town board, and not by an action against the town itself. People ex rel. McCabe v. Matthies, 179 N. Y. 242, 72 N. E. 103; Barber v. Town of New Scotland, 64 App. Div. 229, 71 N. Y. Supp. 1052; Bragg v. Town of Victor, 84 App. Div. 83, 82 N. Y. Supp. 212; People ex rel. Anderson v. Board of Auditors of White Plains, 75 Misc. Rep. 194, 132 N. Y. Supp. 765; Colby v. Town of Day, 75 App. Div. 211, 77 N. Y. Supp. 1022.

[2] Although the town board rejected the claim, and made and filed its certificate to that effect, and adjourned, that fact would not prevent plaintiff from pursuing the remedy above referred to; for the board is a continuing body, and could act upon the claim at a future meeting, if its previous action should be reversed. People ex rel. Village of Brockport v. Sutphin, 166 N. Y. 163, 59 N. E. 770. I have examined with much care the cases cited by counsel for plaintiff, and especially the case of Kennedy v. County of Queens, 47 App. Div. 250, 62 N. Y. Supp. 276. That case involved a liquidated claim, and stands almost alone in holding that it is optional with a person having a claim against a municipal corporation to present it for audit or to bring an action thereon as he sees fit. The later cases do not follow that authority, but hold to the rule of a review by writ of certiorari, as above indicated.

dIf this claim had been liquidated—that is, if plaintiff had been employed by a duly authorized agent of the town to perform certain services at a fixed compensation—it would probably not have been necessary for him to present his claim to the board for audit, and the case of Kennedy v. County of Queens, supra, would have been a sufficient authority to justify bringing an action direct; but this being an unliquidated claim, plaintiff proceeded properly in presenting it to the town board for audit, and that body acted judicially in the matter, and, it having had jurisdiction thereof, it would seem that plaintiff’s *275further course should, be to review that action by writ of certiorari, and to bring the action directly against the town without such review was improper.

The motion for a new trial must therefore be granted, with $10 costs to abide the event.