#### The People ex rel. Rudolph C. Fuller, Relator, *v.*Bird S. Coler, as Comptroller of the City of New York, Defendant.

(Supreme Court, Kings Special Term,

June, 1898.)

Charter of the Greater New York — Salary of the inspector of the Kings county buildings, levied before consolidation — Construction of section 10, chapter 378, Laws of 1897.

Where the county of Kings has, before the consolidation of the Greater New York, included in its budget of January, 1897 and levied in its taxes of that year the salary for 1897, of the inspector of the Kings county buildings, fixed under a special statute, and has subse*12quently turned over the sum to the new city of New .York, the latter , takes the sum charged with the duty of applying it to the purpose for which it was raised; and the comptrollar of the new city of New York cannot refuse payment upon the ground that its board of assessment and apportionment has made no appropriation for tlje purpose,, nor upon the ground that the inspector of the coiinty buildings of Kings has never presented his claim for audit, as required by the charter of the Greater New York. The provisions of section 10 of the charter of Greater New York (Laws of 1897, chap. 378), relate to moneys coming from the cities which were consolidated, and it was not intended thereby that moneys, raised for the salaries of county officers in the county of Kings, should go into the common fund created by the section. ' '

Application for a peremptory writ of mandamus.

Wm. C. Wallace, for relator.

William J. Carr, Assistant Corporation Counsel, for defendant.

Johnson, J.

This being an application for a peremptory writ of mandamus, it must be determined on what stands admitted on the entire record.' It is admitted that, in ¡September, 1895, the relator was appointed inspector, of the construction, alteration and repairs of county buildings in the county of Kings, at a salary of $2,000 a year,' payable monthly; that chapter 1001 of the Laws of 1896 (entitled “An act relating to the office of inspector of construction,- alteration anjl repairs of public buildings in the county of Kings ”) fixed his term of office at four years, and provided that his salary should not be less than $2,000 per year, and practically allowed the board of estimate of the city of Brooklyn to- increase his salary, and also fixed the duties of that office; that in the same year the board of estimate of the city of Brooklyn fixed his salary at $'5,Q00 per annum, at which rate he was -paid from that time up to the first of the present year; that in January, 1897, the common council of the city of Brooklyn, in fixing the budget for that year, included $5,000 for the salary of the relator, which sum was included in the taxes levied in that year; and that the relator has not vacated his office. ' '

■The answer of the comptroller alleges that no money, has been appropriated for the purpose of paying the salary, and that the relator has not presented a claim for audit, as required. by the charter of the greater city. " ■ •

*13The first, and, I apprehend, the main question, is whether or not it is necessary for the board of estimate and apportionment to make an appropriation for this purpose!

Under the plan provided by the charter of the greater city, the budget for each year is made up by the board of estimate and apportionment, and, in part, at least, made up- from time to' time as necessity arises; the plan being for that board to authorize the raising of money for the various municipal purposes, by certificates of indebtedness, the gross . amount thus authorized and represented by such certificates being the tax budget for that year —taxes not being raised as has been the custom in the former city of Brooklyn, in advance, but practically at the end of each fiscal year. Of course, under such a system, there could be no money to pay a salary unless this board made an appropriation therefor, and the provision that no money shall be paid unless appropriated but expresses the necessities of the situation. That is the genera], and what is more to the purpose of this discussion, the continuing rule of the greater city. But,, in this case, the record shows that the money has already been raised for the purpose of this particular salary,, and turned over to the city .of ÜSTew York, and it has been so turned over under temporary and special provisions applying only to this year and to the tax levies of the. portions of the greater' city that theretofore raised their taxes in advance of expenditure. It is to be noted that the relator was an officer of the county of Kings, that the county of Bungs is continued as a public corporation (§ 1, Greater Kew York charter), and that the salary of the relator will continue to be a charge on property taxable in that county. § 902. Under these circumstances, it would seem to be clear1, unless there is some statute to the contrary, that the city took that sum of $5,000, levied as above stated, charged with a duty to apply it to the purpose for which it was raised: People ex rel. Brooklyn Park Commissioners v. City of Brooklyn, 3 Hun, 596; affirmed, 60 N. Y. 642.

Certainly it will not be claimed that, as the matter has been stated above, it would be necessary for the board of estimate and apportionment to take those formal and important proceedings which are required where the proceeding‘is to raise the money by certificates of indebtedness, and to insert its amount in the ensuing tax levy. The defendant, however, meets this biy a reference to section 10, the effect of which, as he claims, is,— that the moneys, which were turned over from the city of Brooklyn and *14county of Kings and the other municipal-corporations consolidated with the former city of Hew York, became a common fund to be used and applied as a part of the general expenses of the greater city, practically merging in and with the amount raised by certificates of indebtedness issued during the present year. The provisions of that section are that "the-money there referred to may be used for the expenses of the present city of Hew York, as the board of-estimate and apportionment may determine, and that it shall be the duty of the board of estimate and apportionment to apportion the said funds to the various city departments as created by this ,act, so that such funds shall be used, as nearly as may be, for the objects for which' they were raised.” ’^os to be noted that the office- of the relator was not created by that act, nor is it a department of the city, but a county office, not only in name'but in duties ; and its salary is to remain a county charge. It results that, if this money is appropriated for the use of the departments created by the charter, it is not appropriated as nearly as may be for the objects for which it was raised; but it would be appropriated and used for quite another purpose.' It should also be noted that the first lines of section 10 relate to thq corporations consolidated with the city of Hew York, .and the county of Kings is not a corporation so consolidated. And I find nothing in section 10, that is hostile to the inference above stated and which appears to me to be indicated by its letter and its spirit. Hence, it seems to me, that the fair construction of section 10 limits it to city moneys, to the moneys flowing in from the corporations that were consolidated, and whose funds or revenues were made applicable to- the corporation succeeding to them, and that it was not intended that the money raised for salaries in the county of Kings, should goi in with this common fund. Hence, it seems to me, that it was unnecessary that the board of estimate should appropriate the money, because the money was already there in the hands of the proper financial officers o"f the greater city, and subject, in law and equity, to being applied for the purpose for which it had been raised, that is to meet this salary.

The other objection presented by the comptroller is that the relator has never presented his. claim for audit. The allegation that the relator has demanded that the comptroller draw his warrant is not denied. I have not" been referred to any section of the charter which requires that the relator should so present his claim. It would certainly seem that where a person holds office under a state law, that if any audit of his bill is required, the auditing officers should perform their duty without being requested by .him. I am *15not aware that it has ever been the custom in this or any city that persons holding offices under a state law or the Constitution are required every month to present their claim for audit. If that were so, the judges of the court, the mayor, the comptroller, himself,' would be required to present the same claim month after month.

It is suggested that application should be made to the board of estimate and apportionment to audit the claim. That point is very narrow' and very technical. The comptroller is a member of that hoard, and if the city owes the money, it is easy to have that audit supplied. The statement of the Court of Appeals in People ex rel. Dady v. Supervisor, 154 *N.*Y. 381, that the court will not assume that public officers will fail to do their duty, seems to me to have just application to this case. Perhaps, however, an answer more direct, though narrow and technical, would be that the comptroller’s affidavit, stating that the relator has failed to present his claim and that the board of estimate and apportionment has failed to appropriate, omits to state that that board has failed to audit the claim.

But I do not think that such an audit, as is now referred to, was required of that board. The claim that 'an audit was necessary is made under section 1583, and that section, in terms, says, that the board of estimate and apportionment shall audit all county, charges and expenses and salaries of county officers. But it should be noted that that is a continuing duty, and the statute is intended to apply to the situation which will exist in all the subsequent years, when the board of estimate will be compelled to make an appropriation before there will be any money to pay. The provisions of section 1583 must be read in connection with that continuing duty and obligation to provide the money, and not only to provide it but to provide it in such a manner that the act of providing it, practically makes a valid budget. If this were the year 1899 and the board of estimate and apportionment had done precisely what has already been done in this case as toward this salary, had raised $5,000 for it, or had raised a proper amount, say for stationery for the courts, would not their duty cease at that point? Can it be said that whfenever a bill comes in for stationery, or a monthly salary falls due, that each particular bill is to go before this great board, including all the prominent officers of the city, and that they are to take it up, item by item, and audit it in the way required of an ordinary auditor? Section 195 provides for an auditor of accounts, and the court understands that that officer, unlike the auditor of the former city of Brooklyn, is a subordinate of the comptroller, as that section seems clearly to *16imply.. In tlie index to the Greater Flew York charter there is no reference to any auditor, nor does, the word “ auditor ” appéar, except as the board of education are authorized to appoint auditors for their accounts, and as provided in section 195. Hence, if this is a valid claim and there is any duty to audit, it is the business of the comptroller through his subordinate, the. auditor of accounts.

In making this decision I am aided by the intelligent and careful study made by counsel, investigating the provisions of the elaborate charter of the greater city. It may be that some provision directly relating to this question has been entirely overlooked. • I have been impressed with the number of applications that have come before me in which elaborate arguments and briefs have been submitted, as to whether or not the officer proceeded against, is the one from whom the precise next needful step or movement is required. When all .such officers are officers of the same corporation, it seems unfortunate that the court should be so often asked to distinguish as to which particular agent of the corporation shall be subjected to its compulsion to perform a duty that the corporation- certainly owes.

At least, the court should not be astute to find .some other officer from whom some trivial or inconsequential step is now due. People ex rel. Dady v. Supervisor, 154 N. Y. 381: But I cannot see against what other officer a similar writ would run. I hold that the money is there sufficiently devoted to this purpose. ' I do not ■ think the board. of estimate and apportionment is required to audit, (as was the auditor of the former city of Brooklyn, or the auditor of accounts) each monthly salary, if the money to meet it is provided. Indeed I cannot conceive that the corporation counsel or the comptroller —• both members of that board — seriously so insist or would so admit, if the proceeding were taken against-that board as has been suggested. I apprehend the auditor of accounts is not a public officer against whom the writ of mandamus would run, and if he is, he certainly is a subordinate of the comptroller here defending.

I am, therefore, of the opinion that the order prayed for should be granted.

Order granted. ■'