
    The People of the State of New York, Appellant, v. Leslie Sutherland, Respondent.
    Second Department,
    December 15, 1911.
    County — audit of bill containing illegal items— action against to recover some part — audit cannot bg questioned collaterally.
    Where bills presented by a county clerk to the board of supervisors of the county including some items which were not proper county charges were audited by the board and paid to the county clerk in their entirety, and the audit has never been vacated or challenged on the ground of fraud or collusion, an action cannot be maintained by the People against the county clerk to recover the amount of the illegal items.
    The presence of the illegal items did not defeat the jurisdiction of the board to audit the entire bill.
    Such an action is governed by the same principles as if brought by the county.
    The audit of a bill by a board of supervisors, if within its jurisdiction, is as conclusive and binding upon the parties as the judgment of a court, until reversed, vacated or set aside,, and, in the absence of fraud and collusion, cannot be questioned in a collateral proceeding.
    Thomas, J., dissented.
    Appeal by the plaintiff, ■ The People of the State of New York, from a judgment of the Supreme Court in favor of ■ the defendant, entered in the office of the clerk of the county of Westchester on the 15th day of September, 1910, upon the report of a referee appointed to hear, try and determine the issues, dismissing the complaint upon the merits.
    
      Irving D. Vann, Deputy Attorney-General [Thomas Carmody, Attorney-General, with him on the brief], for the appellant.
    
      James M. Hunt [John F. Brennan and Leverett F. Crumb with him on the brief], for the respondent.
   Rich, J.:

This appeal is from a judgment dismissing the plaintiff’s complaint in an action brought under the provisions of section 1969 of the Code of Civil Procedure to recover money alleged to have been wrongfully received and retained by the defendant as county clerk of the county of Westchester. Each of the. 103 items sought to be recovered was contained in one of 58 different bills presented at different times to the board of supervisors by defendant; each of the bills .was audited and paid after investigation, and each of the bills contained items conceded to have been proper legal charges against the county. While these facts are alleged, the complaint does not challenge the validity of the several audits or allege fraud or collusion. The referee has found that the bills in proper form were duly audited by the board after a thorough examination; that the work was actually performed by the defendant or his employees, and not by any other officer paid by the county; that there was no fraud or collusion; that the charges contained in- the bills were made for the same character of services and at the same' rates as had been charged by the county clerks of Westchester county prior to the incumbency of defendant, and. had been audited and paid by the board of supervisors; that the board of supervisors had jurisdiction, and their action and audits had never been vacated, reversed or set aside.

The action is to be determined by the same principles .as though brought by the county instead of the State. (People v. Wood, 121 N. Y. 522.) There is an utter failure of proof on the part of plaintiff to sustain the allegations of the complaint unless the bills themselves are to be regarded as evidence of the illegality, of. the items attacked. They can be given no such effect. Such a conclusion could only be sustained in the event that the board of supervisors were not justified in directing the county clerk to perform the work for which the charges were made, or in auditing and paying his reasonable bills therefor, and the record signally fails to establish this fact, and the complaint was properly dismissed.

The audit of a board of supervisors, when it has jurisdiction, is as conclusive and binding upon the parties as the judgment of a court, until reversed, vacated or set aside, and the rule of res adjuclicata applies to audits of claims by a board of supervisors to the same extent that it does to other judicial determinations. (People ex rel. McCabe v. Matthies, 179 N. Y. 242, 248.) The acts of a board of audit within its jurisdiction, in the absence of fraud and collusion, are final and conclusive, and cannot be questioned in a collateral proceeding (Osterhoudt v. Rigney, 98 N. Y. 222, 232); and this principle of law is so familiar that an extended citation of authorities is unnecessary. It follows that if the board had jurisdiction to entertain and act upon the plaintiff’s bills, each of which included items concededly valid, their audits had all the binding force and effect of a judgment conclusively establishing as against the county of Westchester the validity and amount of plaintiff’s claims acted upon, binding and concluding the parties, and consequently the State, until reversed, set aside or vacated in a direct proceeding.

I think that the board of supervisors had jurisdiction to order the work and to pay for the work when performed. (County Law [Gen. Laws, chap. 18; Laws of 1892, chap. 686], § 12; Ghiglione v. Marsh, 23 App. Div. 61, 69; Wadsworth v. Board of Supervisors, 139 id, 832, 838; People ex rel. Board of Supervisors v. City of Kingston, 101 N. Y. 82, 96; People ex rel. Gardenier v. Supervisors, 134 id. 1; Schenck v. Mayor, 67 id. 44; Woods v. Supervisors, etc., 136 id. 403, 410, 411; People ex rel. Smith v. Clarke, 174 id. 259.)

If it be conceded that some of: the items were illegal, the fact that they were included in bills containing valid items gave the board of supervisors jurisdiction to pass upon and audit them. Such audit is final and conclusive after the expiration of the time limited by the statute for review, and cannot be attacked collaterally, as was held in Bank of Staten Island v. City of New York (68, App. Div. 231), in which action fraud and collusion were charged, which is not so in the case at bar.

The judgment must he affirmed, with costs. .

Woodward, J., concurred; Carr, J., concurred in result; Jenks, P. J., concurred in separate memorandmn; Thomas, J., dissented.

Jenks, P. J. (concurring):

I concur upon the last ground stated in the opinion. In the case cited by Rich, J. (Bank of Staten Island v. Gity of New York, 68 App., Div. 231), the 3d paragraph of the head note reads: “In such a case the alloivance of the improper items constitutes an error of judgment and not a defect of jurisdiction. ” Doubtless this is formulated upon the final paragraph of the opinion of the court written by Woodward, J. Bartlett, J., and I, as appears in the report (68 App, Div. 239), dissented on the ground that some of the items included in the coroner’s bill are so clearly unlawful that they could not he legalized by any audit.” The judgment in that case was affirmed by the Court of Appeals (174 N. Y. 519). Although there is some distinction to be made between the Bank of Staten Island Case (supra) and the case at bar, I think that the proposition, which now moves me to this concurrence, was presented; that in any event it was germane and was accentuated by the said dissent. For this reason I feel hound to concur with Rich, J., in this case without consideration of the alleged illegality of the items in question.

Judgment affirmed, with costs.  