
    The People of the State of New York ex rel. Martin, Bing & Company, Respondent, v. The County of Westchester and the Board of Supervisors of said County, Appellants.
    
      Certiorari to review a rejection of a claim by a board of supervisors — stipulation on a motion for a further return that the Supreme Court may order a reference — a judgment on the referee's report is void—it does not create an arbitration — an action at law on such a claim lies only after its rejection by the board.
    
    Pending the bearing of a motion made to compel a further return to a writ of certiorari issued to review the action of the board of supervisors of the county of Westchester in auditing the relator’s claim, the board of supervisors passed the following resolution: “ Resolved, That this Board hereby consents to the appointment of a Referee by the Supreme Court on said motion, to take testimony as to the facts touching the merits of said claim of Martin, Bing & Company against the County of Westchester, to report to the court his findings of fact and conclusions of law, together with the testimony; and this Board hereby waives any question of jurisdiction that there may be as to the right of the court to make such appointment.-” The Special Term then made an order granting the motion for a further return and appointing a referee ‘‘to take testimony as to the facts touching the merits of said claim of Martin, Bing & Company against the county of Westchester, and to report of (sia) this court the testimony so taken, together with his findings of facts and conclusions of law;” and providing that “said testimony, findings of fact and conclusions of law when, and as so found by said referee and finally approved by the Supreme Court, shall be audited, allowed, and the amount so found due and so finally approved shall be ordered paid by the respondent, the Board of Supervisors of Westchester county.” Upon the coming in of the report, the Special Term made an order confirming the same, determining that the relator was entitled to judgment in a certain sum, and directed the entry of judgment therefor.
    
      Held, that the order confirming the report of the referee should be reversed and that the judgment entered thereon should be vacated;
    That the order of reference was unwarranted, as the effect thereof was to substitute the Special Term for the Appellate Division and in any event to relegate the latter court to the review, not of the action of the board of supervisors as contemplated by the Code of Civil Procedure, but of the order of the Special Term and the judgment entered thereon, and that the consent of the board of supervisors did not operate to give the Special Term jurisdiction;
    That the proceeding could not be regarded as an arbitration.
    
      Semble, that an action at law to collect a claim against a county cannot be maintained until it has been rejected by the board of supervisors.
    Appeal by ‘tbe defendants, The County of Westchester and another, from a judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Westchester on the 2d day of January, 1900, upon the réport of a referee, and also from an order made at the Dutchess County Special Term bearing date the 30th day of. December, 1899, and entered in the office of the clerk of the county of Westchester, confirming the report of said referee and diz'ecting judgment in favor of the relator, with costs and an additional allowance.
    
      W. J. Townsend, for the appellants.
    
      Henry O. Griffin, for the respondent.
   Jenks, J.:

The relator obtained a writ of certiorari to review the action of the board of supervisors of the county of Westchester in audit of its claim and account. The defendants made return and the relator moved for a further return. Thereafter the said board of supervisors resolved: “ Whereas, In the matter of the certiorari proceedings now pending for determination of the claim of Martin, Bing & Company for labor and materials claimed to have been furnished in the erection of the hospital at the County Almshouse, and a motion has been made for the further return : Hesolved, That this Board hereby consents to the appointment of a Referee by the Supreme Court on said motion, to take testimony as to» the facts touching the merits of said claim of Martin, Bing & Company against the County of Westchester, to report to the court his findings of fact and conclusions of law, together with the testimony; and this Board hereby waives any question of jurisdiction that there may be as to the right of the court to make such appointment.” The Special Term then made an order that the motion for a further return be granted and that a referee be appointed to take testimony as to the facts, touching the merits of said claim of Martin, Bing & Company against the county of Westchester and to report of (sic) this court the testimony so taken, together with his findings of facts and conclusions of law; ” and further ordered that said testimony, findings of fact and conclusions of law when, and as so found by said referee and finally approved by the Supreme Court, shall he audited, allowed, and the amount so found due and so finally approved shall be ordered paid by the respondent, the Board of Supervisors of Westchester county.”

The reference went to hearing and the referee reported in favor of the relator. Exceptions were filed to his report and findings, and, at the hearing of the motion to confirm the report and for costs, the present appellants contended that the understanding of the parties, the purport of the consent of the supervisors and the terms of the order contemplated that the Special Term had no power to make an order or to render a judgment' other than an order relating to the return upon which the case should be heard by the Appellate Division. But the order of the Special Term, entered upon the said motion to confirm, ratifies, approves and confirms the report of the referee, and determines that the relator is entitled to judgment against the board of supervisors for $1,495, interest, costs and extra allowance and directed judgment therefor, which was entered in accordance therewith. The present appellants appeal from the order of the Special Term confirming the report of the referee, and from the judgment entered upon such order.

The Code of Civil Procedure provides for a hearing of the cause by the Appellate Division. (§ 2138.) The motion before the Special Term was for a further return under section 2135, and I know of no authority that warranted this order of reference or any of the proceedings that were based upon such order. For the effect of the order is to substitute tiie Special Term for the Appellate Division, and to relegate the latter court in any event to the review, not of the action of the board of supervisors, as contemplated by the Code, but of the order of the Special Term and the judgment directed thereon. The consent of the board of supervisors cannot be held to confer jurisdiction of the subject-matter. (In the Matter of Oaffrey [re Village of North Pelham], 52 App. Div. 264.)

We cannot consider the case as if a return were before us, rejecting any immaterial matter as surplusage, for the reason that the record does not contain any return.

The proceedings are not to be regarded as an arbitration. The sole power intended to be conferred upon the referee by the consent or by the order was to take testimony and to report, for a review by the Supreme Court of the testimony so taken and of the findings thereon was expressly provided for. But if the order of reference was a submission to arbitration, this special proceeding was thereby discontinued. (McNulty v. Solley, 95 N. Y. 242.) Moreover, the order of reference also directed a further return. The appellants have always contended that the matter must be heard by the Appellate Division, while the position of the relator is indicated by the following statement in the affidavit of its counsel upon the motion to confirm, It was understood by deponent that he should have the right to appeal from the report of the referee, if not satisfactory, and so the words ‘ finally approved by the Supreme Court ’ were put in, so as not to shut off the right of appeal from the order of confirmation by the Special Term.” Though a general submission to arbitration is a discontinuance for the reason that thereby the parties agree upon another tribunal, such is not the case where “ a judgment on the report, or a cognovit is to follow.” (Ex parte Wright, 6 Cow. 399; Green v. Patchen, 13 Wend. 293, 295; Ensign v. St. Louis & San Francisco R. Co., 62 How. Pr. 123.)

The contention of the appellants that the certiorari proceedings are void ab i/nitio, inasmuch as the sole remedy is an action against the county under the joint authority of People ex rel. Gorr v. Schoonover (43 App. Div. 539) and Kennedy v. County of Queens (47 id. 250), cannot prevail. In People ex rel. Goodwin v. Coler (48 App. Div. 492) we held that where the relator’s claim had never been rejected by the board of supervisors, the Kennedy case was not an authority for the maintenance of an action at law to collect the claim.

The order confirming the report of the referee and directing judgment is reversed, and the judgment entered thereon must be vacated.

All concurred.

Order confirming the report of the referee and directing judgment reversed and the judgment entered thereon vacated, costs to abide the event.  