
    The People of the State of New York ex rel. Henry Long, a Constable of the Town of Clarkstown, Relator, v. The Board of Supervisors of the County of Rockland, Respondent.
    Second Department,
    June 7, 1907.
    Town. — acceptance of claim as audited—waiver of right to judicial■ . -review of audit.
    When after the audit of -the claims of á town constable by the' town hoard and by the board of supervisors after ah appeal to them, he accepts payment of the amount allowed, he waives his right- to a judicial review of the items disallowed.. This, whether -lie receive payment/ under protest, or accept 'it as full or part payment, or whether the payment were accepted before or after the determination by the hoard of supervisors.
    By accepting the. benefit of a judgment a party waives his' right ..to appeal from " it, which rule applies to appeals from the determination of an auditing hoard.
    Certiorari issued out of the Supreme Court on the 13th day of April, 1905, directed to the board of supervisors of the county of Rockland, commanding said! board to certify and return to the office of the clerk of. the county of Rockland all .and singular its proceedings had in the matter of auditing the accounts of the relator as constable of the town of. Clarkstown under section 1-63 of the Town Law (Laws of 1890, chap. 569).
    
      Charles M. Stafford, for the relator.
    
      Willian McCauley, for the respondent.
   Miller, J.:

. The relator presented two -accounts' to the town board of the. town of Clarkstown, county of Rockland, for fees claimed to have been earned by him, as a constable of said town in certain criminal proceedings in which the charge was. either- for public intoxication or disorderly conduct. • The -accounts- Were audited by .said board, certain items being allowed and others disallowed. Thereafter the relator appealed to the board of supervisors of the county -pursuant to section 163 of the Town Law. That body, after taking testimony, made the same disposition as the town board had made, and the relator now seeks to review said determination of the board of supervisors. After the determination by the latter, the relator accepted pavment of the. artiount allowed, and the respondent notp urges that he has thereby waived his right to a further review. The proposition is well settled that by accepting the benefit of a judgment a party waives his right to appeal from it (Bennett v. Van Syckel, 18 N. Y. 481; Knapp v. Brown, 45 id. 207), and that rule has been applied to the right to review the determination of an auditing board. (People ex rel. McDonough v. Supervisors, 33 Hum, 305; People ex rel. Haerle v. Supervisors, 31 App. Div. 557.) This is not a case where 'the duty of allowing a fixed sum was mandatory and could be compelled by mandamus, as was the case of People ex rel. Morrison v. Supervisors (56 Hun, 459; affd., 127 N. Y. 654). To be sure, the fees of an officer are statutory, but it was asserted, and-the bills themselves, by way of suggestion at least, furnished some internal evidence to justify .the assertion that the services were not performed in good faith to enforce tire criminal law, but for the purpose of enabling the officer and the magistrate to present what were in fact fictitious and collusive claims against the town. We do not now pass on the merits of the case, and "only call attention to it for the purpose of showing that the auditing board had a judicial duty to perform, to wit, the determination of the question of fact raised by the contention that a portion, at least, of the bills was fictitious and fraudulent. Irrespective of whether they acted upon sufficient evidence in the determination of that question, the relator could not accept the benefit of their determination and then appeal from it. It matters not that a protest was made; he was not obliged to receive the ■money. Whether- he took it as a payment' in full or as a part payment does not matter; by taking it he accepted the benefit of the decision from which he was appealing. It matters not that the payment was not accepted until after the determination of the board of supervisors; an acceptance of payment before would have waived the right to have his appeal heard by that body; the acceptance" since the determination of that body was a waiver of his right to have such determination reviewed by us, and that fact appearing by the return, we will not consider the cage on its merits.

The writ must be dismissed. ■

Jems, Hooker, Gaykor and Rich, JJ., concurred.

Writ dismissed, with fifty dollars ggsts and disbursements,  