The relator was, during the year 1895, a justice of the peace in Orleans county. In March of that year there was laid before him. *551as such justice, an information charging the accused person with the crime of arson; and thereupon the relator issued a warrant for the apprehension of the accused, who was arrested and brought before him, and an examination took place which resulted in holding the accused for trial. In October, 1895, at the annual meeting of the board of supervisors, the relator presented an itemized account for services and fees in the said proceedings, amounting in the aggregate to the sum of $15.05. One of the items was in these words and figures: “ 20 certificates at 25 c., $5.00.” The account was referred to a committee, who, in a report to the board, recommended that the same be audited and allowed at $10.05, and that an order be drawn in favor of the relator for that sum. The report ivas adopted by the board and the order was drawn accordingly and tendered to the relator, which he refused to accept. The relator then moved for a writ of peremptory mandamus to issue against the board, directing it to forthwith convene and audit said bill, or said rejected item. The board appeared and opposed the application, upon the ground, among others, that the board did examine, pass upon and audit each and every item of the relator’s account, including the item of “ 20 certificates,” by disallowing the same and allowing all the other items, which amounted to the aggregate sum of $10.05. The motion having been denied, the relator appeals to this court for relief.
The relator’s affidavit states that, “ The depositions taken on said proceedings were duly signed, certified and filed, as required by law. That all of the services for which charges were made by him in said bill were actually and necessarily rendered in said proceeding, and that he charged the fees fixed by law, and no more. That in regard to item of ' 20 certificates at 25 c., $5.00,’ deponent says that there were that number of certificates made by him necessarily on the hearing in said proceeding.” In opposition to the motion the respondent read the affidavit of Mr. Dean, a member of said board, and the chairman of the committee on justices’ claims. Deponent says, that “in considering and passing upon the said item of ' 20 certificates ’ the committee endeavored to act fairly upon the merits, and determined and disallowed said item after fully considering the same, believing and understanding that said item was an improper charge.” Deponent also states that he has served on the *552said committee during two sessions of the board, and examined, passed upon and audited all justices’ claims presented, but that no justice’s bill ever came under his observation wherein there was charged any such item for certificates. He also says that the committee directed the messenger of the board to notify the relator to appear and explain the item to the committee, but it is not stated that the messenger obeyed his instructions, and the relator explicitly denies that he received any such notification.
It is not disputed that, if the relator did, in fact, take the depositions of the witnesses in writing and certified each deposition, as he was required to do by, section 204, -Code of Criminal Procedure, he was entitled to charge twenty-five cents for each certificate (4 R. S. [8th ed.] 2785), and that it, therefore, became the imperative duty of the board to audit and allow the claim. But if, on the other hand, he failed to perform this duty or service in any instance or respect, then, of course, he is entitled to nothing. We, therefore, can only understand the respondent’s contention to be that the board made a determination or adjudication of the fact as to the rendition of* the services claimed, and decided adversely to the relator; in other words, that the claim is false, and that the relator has committed the crime of perjury. If the papers presented by the board show that the claim was disallowed upon that ground, then the writ was properly refused, otherwise it must be granted. The question, therefore, becomes one of interpretation and meaning of the language used in the affidavits of Mr. Dean, taken in connection with the moving affidavits and papers.
By section 2070 of the Code of Civil Procedure it is provided that “ a perenqptory writ of mandamus may be issued, in the first instance, where the applicant’s right to the mandamus depends only upon questions of law.” If the relator fails to controvert the respondent’s affidavits, but proceeds to argument and asks for a peremptory writ, this is equivalent to a demurrer; and if the defendant’s papers set forth facts, showing that the relator is not entitled to the relief, a writ will not be granted. (People v. Board of Apportionment, 3 Hun, 11; 64 N. Y. 627; People ex rel. Lewis v. Brush, 146 id. 60; People v. Supervisors, 73 id. 173.) The relator is not entitled to a peremptory writ when a substantial and material issue of fact is raised by the affidavits. (People v. Board *553of Police, 107 N. Y. 235 ; People ex rel. Sickles v. Becker, 3 N. Y. St. Repr. 202.) And in determining whether the issuing of the writ is proper, simply the facts alleged in the petition, which are not denied or put in issue, and the affirmative allegations in the opposing affidavits, may be considered. (People v. Rome, W. & O. R. Co., 103 N. Y. 95.)
And if the substantial allegations in the moving affidavits are not fully met or avoided, a peremptory writ will be granted in the first instance as a general rule. (People ex rel. Carleton v. Assessors of N. P., 52 How. Pr. 140; People ex rel. Harriman v. Paton, 5 N. Y. St. Repr. 313.)
Row, the relator avers that he actually performed the services specified in the particular item in controversy, and that they were necessarily rendered in the proceedings referred to, and this averment is not controverted; it will, therefore, be assumed to be true. And that being so, it became the simple duty of the board to audit and allow the item at the sum or sums fixed by the statute, and it is no answer to say that it is an “ improper charge.” And, though the uncontroverted statements of fact contained in Dean’s affidavit must also be taken as true for the purposes of this motion, yet that is not so in respect of mere conclusions or inferences therein averred. It is in substance and effect alleged that the committee disallowed this item “ upon the merits,” because they believed and understood that it was an improper charge; but, from the concluding statement in that affidavit, the inference may be fairly deduced that such belief was founded upon the circumstance that no other justice of the peace had ever made a charge of that character. In other words, the committee could not perceive the legal propriety of the charge, because they were ignorant of any statutory authority for it, and they, therefore, concluded that it must be an improper claim. And yet it was a very easy matter to call upon the relator for an explanation, since he was a public officer, with his office located in the immediate vicinity of the place of meeting of the board, and where he was regularly in attendance in the performance of his judicial duties. He also states that he frequently met Mr. Dean during the session of the board; and if, as it is claimed, the committee directed a messenger to notify relator to come and “ explain ” the item, it was because they did not understand either what it mecmt or its legality, not because they *554questioned the relator’s veracity. If the respondent intended by the phrase “ improper charge ” that the committee did not believe that such services had been rendered, the averment is not sufficient to controvert the relator’s affidavit on that point. But if it is to be understood as meaning that the charge was illegal, even though the services were performed, then the affidavit is clearly frivolous. It is sufficiently manifest to the court that the committee did not audit and disallow this item upon the ground that they possessed proof (whether legal or otherwise), or that they had good reason to believe that the services had not been performed, but because they “ believed and understood ” that the charge for services of that character was not warranted by any law. They assumed the truth of the facts as to the other items, and why not in respect to this ?
In the judgment of the court the inference is very clear that the committee made no inquiry in respect to the fact of the performance of these services, and- made no determination upon that matter. In that regard they failed in the performance of the duties imposed upon them by law, and omitted a duty they owed to a presumed Iona fide creditor of the county. We are of the opinion, therefore, that the learned judge below was in error in assuming, from the record and the papers presented, that the board determined a matter of fact upon evidence before them; on the contrary, they assumed to determine a question of law, viz., that such a claim could not be otherwise than illegal or “ improper.” It is not stated in the papers nor argued in the brief of the respondent that the boevrd determined that the services were not rendered. By the phrase (in the affidavit of Dean) “ on the merits,” is meant the “ legality ” of the charge and not that the services had not been rendered.
The point is made that the nature or character of .the certificate is not mentioned in the bill, nor does it state that any of the certificates were attached to the depositions, nor that the examination of the witnesses was taken in writing in the form of depositions, as required by section 204, Code Criminal Procedure, nor that each certificate was proper and necessary. The general answer to this is that, according to the affidavit of the chairman of the committee, the item was disallowed because they believed and understood that it was an improper charge, and consequently not by reason of any of these objections now raised for the first time upon the motion. *555These objections, if deemed of any materiality or importance, could easily have been obviated. If the bill was not sufficiently explicit, it might have been rejected for that reason. But however fully and specifically the item might have been stated, it is evident that it would, nevertheless, have been disallowed for the reason stated in the opposing affidavit. The illegality of the claim, and not the insufficiency of the specification, was made the basis of its rejection.
It is also argued on behalf of respondent that the affidavit of the relator attached to the account presented fails to state in a direct and positive manner that the certificates had been made. The affidavit was a printed form, prepared by the board and furnished to the relator, and reads: “ That the items of such account above set forth are correct, and that the services charged therein have been in fact made or rendered, or necessary to be made or rendered.” It is said that this form of verification indicates that some of the services charged in the account were yet to be performed. This criticism appears to have been an afterthought; certainly, it was not considered any objection to the item existing in the minds of the committee ; besides, the bill shows that the examination of the prisoner took place in March, long before its presentation, and from the nature of the proceeding it must have been finished about that time.
It follows that the order denying the motion for a writ of mandamus should be reversed and that the respondent should be compelled by mandamus to hear, consider and determine at the next meeting of the board the fact as to whether the relator did or did not render the services claimed, and if the board should decide that the relator’s claim is correct, just and true, then that it should audit and allow the same in accordance with law.
All concurred.
Order reversed, with costs and writ of mandamus granted directing the respondent at the next meeting of the board to hear, consider and determine the fact as to whether the relator did or did not render the services claimed, and if the board shall decide that the relator’s claim is correct, just and true, then that it shall audit and allow the same in accordance with law.
The appellant is also allowed fifty dollars costs and disbursements of the motion.