#### The People ex rel. Alice Cox Anderson, Relator, *v.*John A. Snedeker et al., as the Board of Town Auditors of the Town of White Plains, Respondents.

(Supreme Court, Westchester Special Term,

January, 1912.)

Appeal — Nature of right and form of remedy — Existence of other remedy as affecting right to appeal — Certiorari.

Courts — Powers — Supreme Court, Special Term.

Towns — Board of assessors — Authority to employ a clerk or other assistant.

After a board of town auditors had judicially passed upon the merits of a claim and disallowed it the claimant’s only remedy is by an appeal, in some cases to the board of supervisors, and in others by certiorari to the Appellate Division of the Supreme Court. '

The Supreme Court at Special Term is without power to review the action of the board of town auditors in disallowing a claim upon the ground that it was not a legal charge.

*195The board of town assessors is without authority to employ a clerk or other assistant and the town board has no power to authorize such employment.

Application-for a peremptory writ of-mandamus.

John J. Ackerman, for relator.

Arthur I. Strang, for respondents.

Tompkins, J.

This matter comes before me. on an application of the relator for a peremptory writ of mandamus, commanding the hoard of town auditors of the town of White Plains to audit and allow the claim of the relator, Alice Cox Anderson, amounting to the sum of $280, for services rendered by her as -a clerk in the office of the board of assessors of the said town of White Plains, having been employed by the said board of assessors by virtue of a resolution, adopted by the town board of said town, which expressly authorized such employment. The counsel for the town board representing, a-s well, the respondents, has submitted no papers in opposition to the motion, and on the argument stated that the town officials whom he represented were neutral in the matter, and simply desired to have the question of the validity of the relator’s claim decided by the court, without assuming an attitude in opposition to the motion.

There seems to me to be two reasons why the court is without -power to grant this motion and by mandamus direct the town board of auditors to audit the relator’s claim.

In the first place, it appears by the moving papers that the respondents, the hoard of town auditors, did, on the 20th day of December, 1911, formerly pass upon the merits of the relator’s claim, -and thereupon, by a majority vote, determine that the said claim was not a legal charge against the town and, for that reason, disallow the same. This was a judicial determination by the board of town auditors which this court, at Special Term, has not power *196to set aside or disturb. This court has power, by mandamus, to direct the board of auditors to pass upon and allow or disallow a claim that is presented to it, but has no power to direct how_ such claim shall be .passed upon, or whether it shall. be allowed or disallowed. After' a board of town auditors has judicially passed upon the merits of a claim and has allowed or disallowed it, the claimant’s only remedy is by an appeal, in some cases to the board of supervisors, and'in others by certiorari to the Appellate Division of this court. So that, in my opinion, this court, at 'Special Term, has no power to review the. action of the board of town auditors' in allowing or disallowing the claim.

In the second place, there is no authority in the law for the employment by the board of town assessors of a clerk or other assistant, nor has the town board any power to authorize the employment by the town assessors of a- clerk or other assistant. I can understand how necessary it may be, in a town of the size of White Plains, for the board of assessors to have a clerk or stenographer, ■ and the Town Law should be amended, so as to authorize the employment of such a person, either directly by the board of assessors, or upon the authority of the town board. But, in the absence of such legal authority, it seems to me that the town auditors were right in disallowing the relator’s claim; and for these two reasons I must deny the application for a peremptory writ of mandamus, but without costs.

Application denied, without costs.