
    The People of the State of New York ex rel. Robert Gedney, Relator, v. Edwin B. Sippell and Others, as the Town Board of Audit of the Town of Orangetown, Rockland County, New York, Respondents.
    Second Department,
    January 11, 1907.
    Town — Election Law — town board may fix compensation of town clerk — board of audit cannot review allowance — town clerk not entitled to compensation as custodian of assessment roll.
    Under section 18 of the Election-Law the town hoard has the right to fix a reasonable compensation for services of the town clerk in carrying out the provisions of that act. When they have determined the amount of such compensation, the town board of audit must audit the claim and cannot refuse on the ground that the allowance was unreasonable.
    Such town clerk, however, is not entitled to compensation for allowing the assessment rolls of the town to he placed in his office for examination.
    . Certiorari issued out of the Supreme Court and- attested on the 18th day of January, 1906, directed to Edwin B. Sippell and others, as the town board of audit of the town of Orangetown, commanding them to certify and return to the office of the clerk of the county of Rockland all and singular their proceedings had in disallowing certain claims of the relator,
    
      Abram A. Demarest, for the petitioner.
    
      Frank Comesky, for the respondents.
   Rich, J.:

This proceeding is instituted to review the action of the- town board of audit of the town of Orangetown, county of Rockland, in" disallowing four claims presented by the relator for audit. - Each claim is. for services alleged to have been rendered by him, as town clerk of said town. The first is for services rendered at an election, other than a town meeting, in the year, 1964; and the members of the town board have fixed the compensation Tor these services at the sum of $300. The town board of audit have refused to allow -this claim at that amount on the ground, that the same is excessive and have audited it at $1.00 as a fair and reasonable compensation for the services rendered. We might not disagree_with the board of audit as to- the value of these services, but cannot pass upon, that question' upon the papers before us. The' Election Law (Laws of 1896, chap. 909) § 18, as amd. by Laws of 1901, chap. 95) vests in the town board the right to fix a reasonable compensation for the services of a town clerk in carrying out the provisions of that act, and we cannot say, upon the facts disclosed in the record, that the compensation so fixed is not reasonable. The members of the town board have been selected by the electors and they are charged with the duty of fixing-the value of the services, and, if they see fit to choose unfit persons who are unfaithful to the trust reposed in them, the fault is not in the law. The two official boards of this town have materially disagreed as to the value of relator’s services; the presumption is that each has given its best judgment and acted conscientiously; but, as has already been said, we are not called upon to examine into the merits of this phase of the controversy. . The question before us for determination- is as to the authority of the board of audit- to review the action of the town board in fixing the relator’s compensation. We are of the opinion that the right does .not exist. Thé duty of fixing relator’s compensation is upon the town board, and, having done this, the only duty of respondents was to audit the 'claim as fixed. It was not for them to say'that the amount was unreasonable; as a. board they had no jurisdiction to inquire into the question. In this case, as in People ex rel. Leitner v. Sipple (109 App. Div. 788), the town board of audit has “ assumed to fix the rate of the relator’s compensation, which had already been lawfully determined.” This they had no right to do, and the rule established in that case must be followed in this.

The next question is presented by the refusal of the respondents to allow two bills for thirty dollars each, presen ted to them for'audit, for services rendered as custodian of the assessment roll for fifteen days in the year 1904 at two dollars per day, and for fifteen days in 1905 at the same rate per day. It appears that the assessment rolls of the town were placed in relator’s office as town clerk during each of those years by the assessors of the town for inspection, and that relator kept his office open for that purpose for the period of time charged for and devoted such time to the service. Our attention is called to no authority under which the relator is entitled to compensation for such services; he was not the custodian of the assessment rolls and was not entitled to a per diem compensation as custodian because an assessor who was the custodian (Tax Law, [Laws of 1896, chap. 908], § 35, as amd. by Laws of 1904, chap. 385) made use of the town clerk’s office in .exhibiting the assessment roll for inspection, We think these bills were properly rejected, as was also the fourth and last claim for services as a member of the town board of canvassers, because this bill was audited in the year 1904.

The determination of the town board of audit should, therefore, be annulled in so far as it relates to the rejection of relator’s claim for compensation for services in connection with the election of 1904, and such claim should be remitted to the board with instructions to audit the same at $300, and as to the other claims the writ should be dismissed, without costs.

Hirsohberg, P. J., Woodward, Hooker and Miller, JJ., concurred.

Determination annulled in part, without costs, and proceedings remitted for audit in accordance with the opinion of Rich, J.  