On motion for reargument the following opinion was handed down: The relator was the sole commissioner of highways of the town of Highland from the annual town meeting in March, 1881, to the annual town meeting in March, 1883. On the Tuesday preceding the annual town meeting boards of town auditors are required to audit the accounts of "all town officers who receive or disburse any moneys belonging to their respective towns." (2 R.S. [8th ed.] 908.) On the last Thursday preceding the annual meeting of the board of supervisors, boards of town auditors are required to meet and audit "the accounts of all charges and claims payable by their respective towns" and certify all claims allowed to the board of supervisors, which body is required to levy the sums certified upon the taxable property of the town. (Chap. 305, Laws of 1840; 2 R.S. [8th ed.] 907.)
On the last Tuesday, preceding the town meeting of 1882, the board of auditors met, examined the accounts of the relator as commissioner and certified in due form that $128.17 was due him from the town. Why this claim was not certified to the board of supervisors by the board of town auditors when they met on the last Thursday preceding the annual meeting of the board of supervisors in 1882, does not appear.
When the annual town meeting for 1882 was held there were thirty-three road districts in the town. A commissioner of highways is required (Chap. 503, Laws of 1880; 2 R.S. [8th ed.] 1354), within one week after the annual town meeting to appoint as many overseers of highways as there are road districts in the town, which duty the relator duly performed March 24, 1882. Charles Hickok was appointed overseer of district No. 3. On the same day the relator duly assessed the highway labor, made out and certified the lists or warrants for the several road districts, which were delivered to the several overseers as prescribed by the statute. (2 R.S. [8th ed.] 1358, §§ 24, 25.) May 1, 1882, the overseers of districts Nos. 12, 18 and 27 resigned, and their resignations were accepted by the relator. May 3, 1882, he made an order *Page 328 by which he assumed to abolish districts Nos. 12, 18 and 27 and added the territory embraced within them to district No. 3. The assessment lists or road warrants which had been issued to the overseers of districts Nos. 12, 18 and 27 were returned to the relator, who delivered them to Hickok, the overseer of No. 3, and directed him to execute them. Subsequently, Hickok refused to obey the commands of the relator and enforce the assessments against persons and property in districts Nos. 12, 18 and 27, alleging as his justification that the attempted abolition of those districts and the addition of the territory within them to his district was in violation of the statute authorizing a sole commissioner of highways to divide his town into as many road districts as he shall think convenient by a written order made at least ten days before the annual town meeting. (Sub. 5, § 1; 1 R.S. 501; 2 id. [8th ed.] 1347.) June 28, 1882, the relator began an action against Hickok in a Justice's Court in the town of Highland, alleging as a cause of action that Hickok, by refusing to obey the commands of the relator and enforce the assessments, had incurred the penalties imposed by statute upon overseers who unlawfully refuse to perform their duties. (1 R.S. 504, § 16; 2 id. [8th ed.] 1350.) The action was twice tried, resulting in disagreements of the juries, and was discontinued. A second action was begun in a Justice's Court of the town of Bethel, which was tried and resulted, in August, 1882, in a judgment for the defendant of no cause of action, with costs. The relator appealed to the County Court, demanding a retrial, which was had, resulting, April 28, 1883, in a judgment of no cause of action, with $76.10 costs, which the relator paid November 3, 1883. Assuming that the litigation was proper, the relator necessarily expended $80.15 in conducting it.
On the last Tuesday (February twenty-seventh), preceding the annual town meeting of 1883, the relator presented his accounts for moneys received and disbursed as commissioner for the preceding year to the board of town auditors (but the claims now sought to be recovered were not included therein), and thereupon his account was audited and it was found that *Page 329 he had received $134.37 more than he had paid out; which sum was adjudged to be due from him to the town. In July, 1883, the supervisor of the town brought an action in a Justice's Court against the relator and his sureties upon his official bond for the recovery of this sum which action the relator settled July 30, 1883, by paying the amount claimed.
On the last Thursday (November 8, 1883), preceding the annual meeting of the board of supervisors in 1883, the relator presented to the board of town auditors his claim audited in 1882 for $128.17; his claim for the judgment paid November 3, 1883, $76.10; amount expended in the litigation against Hickok, $80.15, and demanded that the accounts, with interest, should be allowed him and certified to the board of supervisors, but the claims were all rejected. The relator re-presented the claims to the town board on the last Thursday preceding the annual meeting of the board of supervisors in 1885 and they were again rejected. Thereupon, November 30, 1885, the relator obtained an alternative writ of mandamus requiring the board of auditors to certify to the board of supervisors the audit of 1882 ($128.17) and the judgment for $76.10 costs, and to audit the claim for $80.15, or show cause, etc. An issue of fact was joined which was tried at circuit, and at the close of the evidence the writ was dismissed and the exceptions taken were ordered heard at General Term in the first instance. Upon a case made the General Term sustained the ruling at circuit and ordered a judgment for the defendant, with costs, which was entered, and from which the relator appealed.
The appeal must be determined upon the assumption that every disputed question of fact would have been found in favor of the relator.
The $128.27 was expended by the relator without first obtaining the consent of the board of town auditors in the reparation of bridges damaged after the annual town meeting of 1881. The defendants assert that such expenditure being in violation of the statute (Chap. 103, Laws of 1858; 2 R.S. *Page 330 [8th ed.] 1353), the relator is not entitled to recover the sum of the town. The relator, however, insists that the auditing of the bill by the board was a legal ratification of his act and made his claim upon the town as valid as though the expenditure had been first duly authorized, as provided by the statute cited, and afterwards duly audited. If the relator's position be correct, the fact remains that the board had the power to examine this claim for these unauthorized expenditures and determine whether they were, in fact, made, and if so, were they necessary or reasonable; and it had the right, acting in good faith and within legal rules, to reject the whole or part of the claim for such reason. The relator also insists that the bill having been once audited, the board had no right to reaudit and reject it. The answer to this is that the relator by presenting this claim to the board at its subsequent meetings for audit, submitted his rights to it, and he cannot now successfully assert that the board was without power to re-examine and allow or disallow a claim which he submitted for its determination.
Section 8 of title 5 of chapter 2 of part 1 of the Revised Statutes (1 R.S. 357; 2 id. [8th ed.] 913) and section 1931 of the Code of Civil Procedure do not impose an absolute liability upon towns for all judgments recovered against a sole commissioner of highways in an action prosecuted in his official name. (People v. Bd. of Suprs. of Ulster, 29 Hun, 185;93 N.Y. 397.) The board of town auditors had the power to examine and determine whether the action was one which the relator had the right to prosecute in his official character and whether it was carried on in good or bad faith. The board of town auditors had the power, and it was its duty, to examine and allow or disallow, in whole or in part, the claim for $80.15 expended in the litigation, out of which the judgment for costs arose.
In determining whether the town was liable for these claims the board acted judicially, and such action cannot be reviewed or controlled by courts through the writ of mandamus, which is an appropriate remedy to compel public officers, judicial as *Page 331 well as ministerial, to act; and when the act is ministerial the officer may be compelled to perform the act according to law; but officers vested with judicial power which is to be exercised upon a disputed state of facts, or upon facts from which different inferences may be drawn, cannot be compelled by mandamus to decide in a particular way. If the record before us showed that the claims sought to be recovered were made by a statute or by some well-settled rule of law, legal charges against the town, charges which the board was bound to allow in whole or in part, then this case would have been within the rule laid down inPeople v. Supervisors of Delaware (45 N.Y. 196); People v.Board of Town Auditors of Elmira (82 id. 80) and kindred cases. But, as we have attempted to show, the relator has failed to establish by the evidence contained in the record the absolute liability of the town for the whole or part of any one of the claims, nor does the evidence present a question of fact which could have been determined so as to establish the liability of the town.
The motion for a reargument should be denied.
All concur, except BROWN, J., not voting, and PARKER, J., not sitting.
Motion denied