App. Div.]

Third Department, May, 1908.

EMMETT ARMSTRONG, Respondent, v. WILMER H. FITCH and Others, Comprising the Board of Supervisors of Clinton County, Appellants, Impleaded with GILBERT MILLER and Others, Defendants.

Third Department, May 6, 1908.

Town-tax-illegal assessment to pay claims disallowed by town board – powers of supervisors.

Supervisors are without authority to lay taxes on a town to pay claims which have been rejected by the town board whether or no the claims should have been allowed.

Such unauthorized action by the supervisors is illegal taxation and expenditure of public funds and may be mestrained at the suit of a taxpayer. The plaintiff in such action may challenge the jurisdiction of the supervisors. Moreover, the disallowance of claims by a town board is a judicial determination conclusive on the board of supervisors until reversed or annulled as provided by law.

Section 16 of the County Law, allowing the board of supervisors to correct manifest clerical errors in any assessment or return made by town boards, has reference merely to clerical corrections and the performance of ministerial duties in reference thereto and does not empower the supervisors to make assessments to pay claims disallowed by a town board.

APPEAL by the defendants, Wilmer H. Fitch and others, comprising the board of supervisors of Clinton county, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 4th day of January, 1907, upon the decision of the court rendered after a trial before the court without a jury at the Clinton Trial Term.

The plaintiff, a taxpayer of the town of Mooers in said county of Clinton, has recovered a judgment vacating certain audits made by said board of supervisors against said town of Mooers and restraining said board of supervisors from levying and assessing said claims against said town.

W. H. Dunn, for the appellants.

David H. Agnew [ R. Corbin of counsel], for the respondent.

COCHRANE, J.:

Third Department, May, 1908.

[Vol. 126.

It is admitted that the claims in question are such as are subject to the jurisdiction of the town board of auditors. Some of them prior to the action of the board of supervisors had been disallowed by said town board either in whole or in part. The others had not been presented to the town board.

It is urged by the appellants that the claims are lawful and proper charges against the town, and that the taxpayers are not, therefore, damnified by the action of the board of supervisors. It is sufficient to say in answer to this argument that the action of the board of supervisors was without jurisdiction and the court will not consider whether or not in a proper forum such claims should be allowed. The supervisors without any authority of law attempted to fasten certain taxes on the town, and such unauthorized action constituted unlawful taxation and an illegal expenditure of public funds. Claims, however meritorious, are not legal within the meaning of the Taxpayers' Act (Laws of 1892, chap. 301) unless so determined by a forum empowered by law to make such determination. That act by its terms may be invoked "to prevent any illegal official act on the part of any such officers." The case differs materially from those cited by appellants where the wrongful official acts did not involve any public expenditure.

it

may

That the want of jurisdiction may be challenged in an action of this kind was decided in the case of Osterhoudt v. Rigney (98 N. Y. 222). As to such of the claims as had been disallowed by the town board further be said that such action of the town board constituted a judicial determination by a tribunal of competent jurisdiction that such claims were illegal, which determination until reversed or annulled as provided by law is conclusive on every one, including the board of supervisors.

As to such rejected claims, however, the appellants claim the right of review under section 16 of the County Law (Laws of 1892, chap. 686), which provides that the board of supervisors "may correct any manifest clerical or other error in any assessment or returns made by any one or more town officers to such board or which may or shall have properly come before such board for its action, confirmation or review." It has been held that this statute conferred upon boards of supervisors no power to review the action of town

App. Div.]

Third Department, May, 1908.

officers in respect to the merits or legality of the questions before them, but only to make clerical corrections and perform ministerial duties in reference thereto. (Matter of Buffalo Mutual Gas Light Co., 144 N. Y. 228; Matter of Hermance, 71 id. 481.) The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.

EDGAR T. BRACKETT, Respondent, v. GEORGE N. OSTRANDER and GEORGE F. UNDERWOOD, Defendants, Impleaded with HELEN E. FOULDS, Appellant.

Third Department, May 6, 1908.

Attorney and client - services rendered to executors- pleading — answer - agreement to look to estate construed

demurrer.

Action by an attorney at law to recover for professional services rendered to executors. The answer alleged that the plaintiff had received the joint promissory note of the defendants in full satisfaction and discharge of all claims under his retainer and in support thereof incorporated the following receipt: "I have received from the executors of George R. Finch, deceased, a note of George N. Ostrander and Helen E. Foulds for $15,000. * My services I will make no

* *

in matter of Finch Estate were rendered for the executors. further personal claims against said executors for said services making any further claim only against the said Estate or said persons as executors." demurrer to said defense,

On

Held, that as the instrument must be construed if possible so as to make operative every clause and word, it was an agreement that the defendants were not to be personally liable for any balance due, and that the plaintiff would pursue his remedy, if any, against the estate.

An ambiguous instrument signed by an attorney and delivered to his client will be construed most favorably to the latter.

Query, as to whether an attorney at law can sue an estate in equity to recover for services rendered to executors resulting in a probate of the will.

An attorney at law who has agreed with executors to look only to the estate for compensation cannot maintain an action against them at law for a balance due on the theory that the action is merely to liquidate his claim as the first step in a suit in equity to charge the estate. This, because any judgment against the defendants will be collectible de bonis propriis and not de bonis testatoris, and because such judgment would not measure the liability of the estate.

APP. DIV.- VOL. CXXVI. 34

Third Department, May, 1908.

[Vol. 126. It is no defense to the complaint of an attorney for professional services rendered to defendants in their individual capacity to allege that the plaintiff for a val uable consideration executed an instrument annexed wherein the attorney agreed to look for compensation to the estate of which the defendants were executors, where the complaint does not show that the services were rendered to the defendants in their representative capacity and the defense does not incorporate other allegations showing that to be the fact.

APPEAL by the defendant, Helen E. Foulds, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 9th day of January, 1908, upon the decision of the court, rendered after a trial at the Saratoga Special Term, sustaining the plaintiff's demurrer to certain defenses in the amended answer of the said defendant.

The complaint for a first cause of action alleges that between February 15, 1906, and May 1, 1907, the plaintiff, as an attorney and counselor at law, rendered legal services for the defendants on their employment of the reasonable value of $35,000; that in rendering such services the plaintiff incurred expenses and disbursements amounting to $230.42; that on or about October 27, 1906, the defendants Ostrander and Foulds gave plaintiff their note for $15,000 to apply on said services and disbursements, which note was thereafter paid, and that nothing further has been paid.

The complaint for a second cause of action alleges that between February 15, 1906, and May 1, 1907, the plaintiff, as an attorney · and counselor at law, rendered legal services for the defendants on their employment; that in rendering such services the plaintiff incurred expenses and disbursements amounting to $230.42; that on or about October 27, 1906, the defendants gave plaintiff a note of defendants Ostrander and Foulds for $15,000 on account of said services, which note was thereafter paid; that the plaintiff on or about June 11, 1907, rendered to the defendants a bill for the sum of $35,000 and the further sum of $230.42 disbursements, and credited upon such bill the sum of $15,000 paid thereon; that defendants examined said bill and made no objection thereto, whereby an account became stated and fixed between the parties for the sum of $20,230.42. A copy of said bill was annexed to the complaint and referred to as a part thereof in said second cause of action, from which bill it appears that such services were rendered

App. Div.]

Third Department, May, 1908.

in the matter of the probate of the last will and testament of George R. Finch, deceased.

Said complaint contains a demand in the usual form for judgment against the defendants for $20,230.42.

The third defense in the answer of the appellant was interposed as a separate and partial defense to the second cause of action and is as follows: "After the plaintiff was retained and employed by the defendants to render legal services and counsel for them, as averred in the alleged second cause of action, and before the commencement of this action, to wit, on or about October 27, 1906, the defendants delivered to the plaintiff, and the plaintiff accepted and received from them, the joint promissory note of the defendants Helen E. Foulds and George N. Ostrander for $15,000, being the note referred to in Article 5th of the alleged second cause of action, in full satisfaction and discharge of all claims of the plaintiff under the retainer and employment referred to in the alleged second cause of action for services rendered by the plaintiff to the defendants thereunder, prior to October 27, 1906. The said note was thereafter duly paid at maturity. At the time the said note was given, the plaintiff agreed with the defendants, by an instrument in writing, executed at the time the said note was given, and in consideration therefor, that he would make no further claim against the defendants for the said services. A copy of the said written agreement is hereto annexed, marked Exhibit A.' All the services of the plaintiff subsequently rendered under the said retainer and employment were not reasonably worth more than the sum of $500."

The fourth defense was interposed as a defense to the first cause of action and is as follows: "After the alleged first cause of action stated in the complaint accrued, and before the commencement of this action, the plaintiff for a valuable consideration executed and delivered to the defendants Ostrander and Foulds, an instrument in writing, a copy of which is hereto annexed marked Exhibit A.'" The fifth defense is the same as the fourth defense except that it was interposed as a defense to the second cause of action.

The sixth defense is the same as the fourth defense except that it was interposed as a partial defense to the first cause of action, and the seventh defense is the same as the fifth except that it was interposed as a partial defense to the second cause of action.