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The People on rel. Kelly a. Haws.

THE PEOPLE on rel. KELLY a. HAWS.

Supreme Court, First District; At Chambers, April, 1861.

MANDAMUS.-COUNTY CHARGES.-COMPTROLLER OF THE CITY OF NEW YORK.

Although, in general, moneys expended by a county officer in executing the duties of his office, are a county charge; yet, where an officer acts otherwise than for the benefit of a county alone,-e. g., as where the district-attorney of a county, within the metropolitan police district, brings suits for penalties under the police act, for the benefit of the police fund or the treasury of the State,expenses incurred therein are not county charges; and the board of supervisors have no jurisdiction to audit them.

The fees of a sheriff for services in actions brought for the benefit of the metropolitan police fund, or the treasury of the State, are not county charges.

The fees of a sheriff for services in actions brought for the commissioners of excise of his county, are county charges.

The comptroller cannot be compelled, by mandamus, to draw his warrant for payment of charges audited by the board of supervisors, which are not, by law, county charges.

The provisions of the charter of the city of New York (Act of April 14, 1857, § 22; Act of April 15, 1857, § 6) do not give the comptroller power to examine and disallow county charges which have been already examined and allowed by the board of supervisors. It seems, his power in respect to such charges is limited to the examination of the vouchers.

Application for a mandamus.

The facts are fully stated in the opinion.

A. Oakey Hall, for the relator.

H. H. Anderson, for the defendant.

SUTHERLAND, J.-On the 2d day of April, 1860, the relator presented to the board of supervisors of the county of New York an account amounting to $5,885.20, for services which he claimed had been rendered by him as sheriff to or for the county of New York, and were chargeable to said county;

The People on rel. Kelly a. Haws.

which account was examined, allowed, and settled by the board at said sum, and was afterwards, by resolution of the board, approved by the mayor, ordered and authorized to be paid by the comptroller, from the appropriation for "officers and witnesses' fees."

On or about the 2d day of July, 1860, the relator presented to the said board of supervisors another account, for other services, amounting to $5,911.70, which he claimed to have been rendered by him as sheriff to or for the county of New York, and which were chargeable to said county; which account was also examined, settled, and allowed by the same board, at the last-mentioned sum, and was in like manner, by resolution of the board, approved by the mayor, ordered and authorized to be paid by the comptroller from the same appropriation.

These accounts, as thus allowed, with the resolutions of the said board, were afterwards presented by the relator to the defendant, as comptroller of the city of New York, and the examination and allowance thereof by the city auditor, and the approval thereof by the comptroller, and warrants for the payment of the same, demanded. The auditor declined to allow, and the comptroller refused to approve and draw his warrant for a certain class of items in the first account, amounting to $1,696, or for a certain class of items in the second account, amounting to $525, on the ground that they were not legal county charges; the first class of items being charges for summoning jurors for the Court of Common Pleas of the city and county of New York, in certain actions brought by the districtattorney, for penalties under the Metropolitan Police Act, and the second class of items being charges for like services, in summoning jurors in certain actions brought in the Court of Common Pleas, for penalties, either under the act entitled "An act to suppress intemperance and to regulate the sale of intoxicating liquors," passed April 15, 1857, or under the said police act.

On the 21st day of May, 1860, the relator presented to the said board of supervisors a certain other account, amounting to $3,895.96, for other services claimed to have been rendered by him as sheriff for the county of New York, and to be chargeable to the said county; of which amount $516.70 were

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The People on rel. Kelly a. Haws.

for serving summons and complaints in said actions brought by the district-attorney under the police act, and $3,378.26, the remainder thereof, for serving like process or papers in actions commenced by, or in the name of, the board of commissioners of excise, under said Excise Act. This account was also audited and allowed by the board of supervisors, at its full amount, and, by resolution of the board, approved by the mayor, and directed to be paid by the comptroller from the appropriation aforesaid.

This account, and the resolution directing its payment, were also presented to the department of finance of the city; but the auditor refused to allow, and the comptroller refused to approve the same, or to draw his warrant therefor, alleging that the same was not a legal county charge.

The comptroller paid all of the two first-mentioned accounts, except so much and such items thereof as he refused to draw his warrant for, as aforesaid; but such payment was received by the relator, under an agreement between him and the comptroller, that the same should not prejudice the relator's right to claim payment of the balance of said accounts.

On an affidavit of the relator, substantially stating the foregoing facts, an order for the defendant, as comptroller, to show cause why a peremptory mandamus, commanding him to draw his warrant for the amounts remaining unpaid upon said accounts, was granted.

The comptroller appears and shows cause, and, on his behalf, his affidavit is read, stating substantially, among other things, as to the account or bill first in the relator's affidavit mentioned; that he refused to pay the sum of $1,696, as in that affidavit alleged; that, as appears, by the said bill, and as he believes to be true, said entire amount of $1,696 is charged for services alleged to have been rendered in summoning the jury to attend the Court of Common Pleas, at terms of the court in the months of February, March, April, May, June, October, November, and December, 1859,-being a charge of fifty cents in each cause, for each month or term of said court, in certain actions brought by the district-attorney, pursuant to section 21 of the Metropolitan Police Act;-and that no portion of said sum is charged for services in, or with reference to, any other suits than those brought by the district-attorney as aforesaid; that he

The People on rel. Kelly a. Haws.

(the comptroller) is informed and believes, that no proof was made to the board of supervisors that either of said causes had been noticed for trial at either of said terms; and he verily believes that said causes were not so noticed for trial at all, if at any, of said terms; and (after explaining in the affidavit how the calendar in the Common Pleas is made up, and the list of causes on it continued and added to) that the fact of the title of the cause appearing on the calendar is no evidence whatever that said cause has been noticed for trial, or is then pending. As to the second bill or account mentioned in the relator's affidavit, that the amount of $525 is charged for like services in summoning jurors, alleged to have been rendered in actions commenced by the district-attorney under the same section of the Metropolitan Police Act, although alleged in the affidavit of the relator to have been commenced under the Excise Act, the deponent then makes a similar allegation, on information and belief, that the causes were not noticed for trial or so placed on the calendar as to authorize the charges making up the $525. The deponent further states in his affidavit, on information and belief, that said suits have not been brought to judgment, and that costs have not been adjudged against the plaintiffs in said suits.

As to the third bill or account mentioned in the affidavit of the relator, the comptroller alleges, in his affidavit, that the sum of $516.70 is charged for serving summonses and complaints in four hundred and seventy actions commenced by the districtattorney, pursuant to the same section of the Metropolitan Police Act; of which sum $235 is charged for serving summonses and $235 for serving complaints in the same actions; being fifty cents for serving each summons, and fifty cents for serving each complaint; said several complaints being annexed to or served with the said summonses, as the deponent believes and charges; the balance of said sum of $516.70 being for mileage in serving said summonses and complaints; that each of said actions, as he is informed and believes, is a civil action; that he is advised that the complaints were not process in said actions, and that no such sum as that charged for serving complaints is allowed by law to the sheriff, or chargeable against the county, and that none of the said sums are chargeable against the county; that he refused to draw his warrant for the

The People on rel. Kelly a. Haws.

sum of $3,378.26, included in the third bill or account mentioned in the affidavit of the relator, because he was advised and believed that the same were not chargeable against the county; that of said sum $3,014 is charged for serving summonses and complaints in three thousand and fourteen actions, alleged to have been commenced in the name of the commissioners of excise, under the Excise Act; $1,507 thereof being for serving summonses in said actions, and $1,507 thereof being for serving complaints in the same actions; the balance, $364.26, being for mileage. Similar allegations to those before made, as to the summonses and complaints being served together, as to the complaints not being process, &c., are then made and insisted on to show that the said sum of $3,378.26, and no part thereof, was chargeable to the county.

It is further alleged, in the affidavit of the comptroller, on information and belief, that said last-mentioned suits have not, nor has either of them, been tried; and that said costs have not been adjudged against the plaintiffs therein; and that many of said suits, though commenced in the name of the commissioners of excise, were not commenced by authority of said commissioners, but were commenced as permitted by the Excise Act, by some person or persons to the deponent unknown.

The question is, whether, on these facts and allegations for and against issuing the writ, a peremptory mandamus should issue to the comptroller, commanding him to pay or draw his warrant for the whole or any portion of the disputed claims of the relator.

I cannot doubt that a mandamus may issue for the payment of any one or more of the disputed claims or amounts demanded of the comptroller, or for the payment of any sum or amount less than the aggregate of the disputed claims or amounts demanded of the comptroller.

As to all of the disputed accounts or claims, the comptroller insists that they were not chargeable to the county, and that he has a right to determine or judge for himself whether they were or were not chargeable to the county. He also resists the payment on other grounds indicated in his affidavit, which I have stated quite at large.

On the part of the relator, it is insisted:

1. That the action of the board of supervisors in allowing

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