McDonnell v. Mayor of New York , 11 N.Y. Sup. Ct. 472 ( 1875 )

Davis, P. J.:

The claim upon which the recovery was had in this action has never been audited by the board of education of the city of New York. The obligation upon the comptroller as the financial officer of the city to p>ay the claim, is dependent upon the fact that the board of education of the city has audited and allowed the claim. The legislature, in transferring the indebtedness of the annexed towns to the city of New York, had .the right to establish that safe-guard against fraudulent and exorbitant claims, and to impose it as a condition precedent to the obligation to pay. The question on the trial, was not who was bound to present the claim for audit by the board or who must procure the auditing to be done. The question was, has it been done on any one’s presentation or procurement. If the plaintiff was not able to show that the audit had taken place, he failed to show that his right of action was ripe. If it were, as suggested, the duty of the comptroller to have the account audited, that officer if he unjustly refused to perform the duty should have been set in motion by mandamus. If it was the duty of the board of education to audit without presentation by any one, the same remedy would' set that body in motion. If the duty rested upon the plaintiff he should have taken the necessary steps. It is not enough to show that the claim is a just one; nor that it received the approval of the local officers of the town by which the debt was created; because, however essential those things may be, they do not alone answer the requirement of the statute which imposes the debt on the city. The case is analogous to those in which the certificate of a public officer or of some designated person is requisite by statute. or by contract before payments can be claimed. In such cases it is settled by many authorities that the certificate must be produced; or that it was fraudulently and unjustly withheld or refused after proper application.

It follows that the absence of all evidence that the claim had been audited by the board, or that the condition required by the statute had become impossible of performance, or such other excuse as the law will accept in place of such performance, the plaintiff failed to show that the liability of the defendants to pay the indebtedness had become a legal obligation which can be enforced by suit.

The plaintiff was not, therefore, upon the evidence given by him, entitled to recover, and the judgment must be reversed and a new trial ordered, with costs to abide the event.

Daniels, J., concurred.