Wells v. Town of Salina , 71 Hun 559 ( 1893 )

HARDIN, P. J.

On the 13th day of November, 1890, the plaintiff presented a detailed statement of his claim to the board of town audit, and requested them to audit and allow his claim. They refused to do so, and adjourned sine die. In People v. Board of Audit, 4 Hun, 94, it was suggested that town auditors could not hold special meetings, and that a mandamus requiring them to reconvene and audit a claim was improper, and that it should have required them to audit the claim at the next annual meeting. If plaintiff had waited the assembling of the next annual meeting of the board in November, 1891, he would have been met with the defense of the statute of limitations. Instead thereof he commenced this action on the 10th of March, 1891, while there was no town board in session, and when, under the statutes, none would be in session until the following November. The answer of the defendants contains no allegations that the plaintiff had a remedy by mandamus, nor does the answer contain a defense that the plaintiff has an adequate remedy at law. Town of Mentz v. Cook, 108 N. Y. 504, 15 N. E. Rep. 541; Ostrander v. Weber, 114 N. Y. 95, 21 N. E. Rep. 112. Inasmuch as the claim for services of the attorney accrued in April, 1885, the same would have been barred by the six-years statute if" plaintiff had delayed until November, 1891, for the assembling of the town board. It is difficult to see why the defendants could not avail themselves of all defenses to this action which would have been open for them to present against the proceeding, by way of mandamus, to compel the board of town audit to consider and allow the claim of the plaintiff. Whether the plaintiff is entitled to an equitable subrogation or not is a legitimate question for the determination of a court of equity. Plaintiff has alleged that he was entitled to such subrogation, and the defendants have taken issue thereon, and it has been determined in the trial of the action adverse to the defendants. Under such circumstances, inasmuch as the town board had refused to audit the claim, it is difficult to see why a court of equity has not jurisdiction to ascertain the essential facts relating-to the claim, and make an adjudication thereon, and to direct that the town board proceed to audit the claim. Inasmuch as the town board did not act upon the claim, it may not be said that what took place before the board was an adjudication which was exclusive,, and formed a bar to any further proceedings on the part of the-plaintiff to have his claim established. People v. Barnes, 114 N. Y. 317, 20 N. E. Rep. 609, and 21 N. E. Rep. 739. H it be assumed that the plaintiff is entitled to recover in either aspect of the case,, the six-years statute of limitations does not stand in his way, as this -action was commenced within six years from the 24th of April, 1885, when the services of Mr. Stephens were completed. In Adams, v. Bank, 36 N. Y. 255, it was held that, until the determination of an action in which the services of an attorney have been had, the statute of limitations does not begin to run. It is insisted that the former action, based upon the notes held by the plaintiff, is a bar to this action. By the opinion delivered in that case, 119 N. Y. 280, 23 N. E. Rep. 870, it appears that that was an action at law, and was. tried as such, and it was intimated that under the pleadings in that case the equitable aspects could.-not be considered; and the essential point discussed in the opinion was that the town was not liable upon the notes, as it had no express authority to borrow money. It was observed incidentally in the opinion that “the bills for services have never been audited or allowed in the mode prescribed by the statute;” and in that opinion it was said as follows:

“But even if we should assume that it had been sufficiently established that the town had the full benefit of the money thus borrowed, that would not- authorize the maintenance of this action. Even if the plaintiff’s testator, by the payment of the expenses of the litigation, became the equitable assignee of the bills representing such expenses, and might have taken and presented those bills for audit to the board of town auditors, yet he never did so. He did not bring his action upon the theory that he was an equitable assignee of those bills, and he gave no proof which entitled him to recover as an equitable assignee, and the case was not tried upon that theory.”

The language just quoted seems to justify an inference that that action was disposed of solely as an action ait law, and that the theory upon which the present action is founded was not considered, as it was not supposed to be within the issues then before the court,. -and thus it is apparent that the present issues were not litigated under the pleadings in that case; therefore, that action is not a bar to the one now presented. Embury v. Conner, 3 N. Y. 511; Palmer v. Hussey, 87 N. Y. 303; Belden v. State, 103 N. Y. 1, 8 N. E. Rep. 363. The language already quoted from the opinion delivered ' in -the court of appeals also seems to furnish a warrant to this court to leave the question as to the plaintiff’s right to the relief awarded to rest upon the principles and authority as presented in the opinion delivered by KENNEDY, J., at special term. We therefore forbear any further discussion of the questions presented to us by this appeal. The views already expressed, as well as those contained in the opinion at special term, lead to an affirmance. Judgment -affirmed, with costs. All concur.