
    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 ses trained 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 cleric 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. :

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 cáse differs materially from those' cited by appellants where the wrongful official acts did not involve any public expenditure.

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 it may 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 officers ill 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 he affirmed, with costs.

Judgment unanimously affirmed, with costs.  