
    The People of the State of New York ex rel. Martin, Bing & Company, Appellant, v. The County of Westchester and The Board of Supervisors of Westchester County, Respondents.
    
      Certiorari to review an audit by a board of supervisors—an audit allowing a claim in part is final—what instrument constitutes an equitable assignment — a county is not liable for an act of conversion by its officers.
    
    A writ of certiorari lies to review an audit made by a board of supervisors allowing in part and rejecting in part a claim against the county. Such action on the part of the board is final.
    An instrument given by parties contracting to build a county building to a subcontractor with them, stating: “We, the undersigned, Douglass and Donohue, hereby agree that the Committee on Superintendent of Poor and Asylums, having in charge the building of the hospital at County House at East View, Hew York, shall pay to Martin, Bing & Company such amounts as may be due them from ús, and deduct the same from money due us by said committee,” constitutes an equitable assignment, and where the county has notice thereof and accepts it. any money due from the county to the contractors under their contract at the time of the execution of the assignment, or which thereafter may become due to them, is applicable to the amount then due to the sub-contractor, or which may thereafter become due to him.
    Prior to the passage of chapter 686 of the Laws of 1892 (the County Law) no liability rested upon a county for the malfeasance of its officers in converting building material by their refusal to permit the owner to take possession of it, and the act of 1892 imposed no new liability in that respect.
    Certiorari issued out of the Supreme Court and attested the 17th day of June, 1899, directed to The County of Westchester and The Board of Supervisors of Westchester County, commanding them to certify and return to the clerk of the county of Westchester all and singular their proceedings in relation to the audit by The Board of Supervisors of Westchester County of the claim of the relator.
    
      ' Henry O. Griffi/n, for the appellant.
    
      W. J. Townsend \Charles P. McClelland with him on the brief], for the respondents.
   Jenks, J.:

It is insisted that this writ of certiorari to review an audit of a claim by the board of supervisors of the county of Westchester does not lie,' Ho forbidding precedent is cited. But the proposition is this: Subdivision.! of section 2122 of the Code of Civil Procedure-prohibits it, as the right to sue on the claim negatives the idea that the audit finally determines the rights of the parties. The respondents cite People ex rel. Gorr v. Schoonover (43 App. Div. 539). and Kennedy v. County of Queens (47 id. 250). From the earliest time in- the history of the State claims against a county were necessarily presented to the board of supervisors for audit. (Albrecht v. County of Queens, 84 Hun, 399 ; People ex rel. Outwater v. Green, 56 N. Y. 466.) In the latter case the court, per Johnson, J., say that “ this jurisdiction Of the board of supervisors, over the allowance of county charges, had, by its long continued and uniform existence, become as nearly fundamental in the administrative policy of this-State as any mere statutory regulation could be.” Where the claim was not fixed by statute, and, therefore, the audit involved discretion or judgment, the determination was beyond collateral attack and conclusive unless reversed on review by certiorari. (Albrecht v. County of Queens, supra; Osterhoudt v. Rigney, 98 N. Y. 222; People ex rel. Myers v. Barnes, 114 id. 317.) Gorr's Case (supra) involved the audit of a village, board under a village charter. It was decided upon the authority of Port Jervis Water Co. v. Village of Port Jervis (151 N. Y. 111), which also dealt with a similar audit. In the opinion of the court, Haight, J., said: “ In support of this contention our attention is called to the case of Brady v. Supervisors of New York (2 Sandford, 460; 10 N. Y. 260)' and other similar cases, but to our minds these cases are not applicable and have no bearing upon the questions under consideration.” Brady v. Supervisors of New York (supra) was a claim for services against the county. The “ other similar cases,” which appear in the memorandum of the counsel’s points, and which, so far as this point is concerned, are People v. Supervisors (67 N. Y. 109); Osterhoudt v. Rigney (supra); People ex rel. Myers v. Barnes (supra); Culross v. Gibbons (130 N. Y. 447); McDonnell v. Mayor (4 Hun, 472), all relate to the audits' of county or of town boards. And plainly the reason in the mind of the learned judge that those cases were not applicable to the audit of a body of village officers was that the audits in those cases were made by county or by town officials. This is indicated by the language of the opinion that immediately follows, for, after writing that the said decisions were not applicable as quoted supra, he proceeds \ “ Counties and towns are the civil divisions of the state, and as such are not subject to actions, except in so far as the statute has given them corporate capacity, with the right to sue and be sued. With cities and villages it is quite different; they are corporations created by the legislature, and as such may be sued in any of the courts of the state having jurisdiction of the subject-matter.” This decision was rendered in 1896, four years subsequent to the enactment of the County Law (Laws of 1892, chap. 686). In Kennedy v. County of Queens (supra) the court, while holding that when a liquidated demand exists against a county, which the board rejects, refusing to recognize the contract and refusing to pay the minimum price named therein, although the plaintiff had performed, there was a right of action against the county, said, per Goodrich, P. J.: “ By this construction of all the provisions of the County Law relating to the subject before us, an orderly system for the judicial determination and enforcement of claims by and against counties is established. The claimant may present his account for audit and voluntary payment and may still compel such audit by mandamus or have the proceedings reviewed by certiorari, or, at his option, he may at once bring action and have the amount of his claim originally determined by the courts, and, if successful, have payment thereof enforced by judgment and the remedies thereon. This conclusion is not inconsistent with any of the reported cases above cited. As was said by Judge Finch, speaking for the court, in Thomas v. Supervisors of Westchester Co. (115 N. Y. 47, 55) : 6 The two provisions can stand together as furnishing a double remedy for the same default.’ ” (P. 257.)

If any action of the board upon a claim could bo final, surely the action now up for review is final. The board has received the claim, and has acted by allowance in part and by rejection in part. This is an audit. (People ex rel. Myers v. Barnes, supra ; People ex rel. Brown v. Board of Apportionment, 52 N. Y. 224, 227.) Thus the board lias performed its function, and nothing remains to' be done to complete its final act. I am of opinion that the. writ lies.

Douglass and Donohue were the contractors for the county building, and the relator had a snb-contract therein with them. The former executed the following instrument: “We, the undersigned, Douglass and Donohue, hereby agree that the Committee on Superintendent of Poor and Asylums, having in charge the building of the hospital at County House at East Yiew, Hew York, shall pay to Martin, Bing & Company such amounts as may be due them from, us, and deduct the same from money due us. by said committee.” I think that this was an equitable assignment made by the contractors to the sub-contractors (Brill v. Tuttle, 81 N. Y. 454; Lauer v. Dunn, 115 id. 405 Stevens v. Ogden, 130 id. 182), and that there is evidence to establish that the respondents both had notice of it and accepted it. Though the order named no specific sum, yet the undisputed facts, known or accessible to the relator at the time, limited the scope, thereof, for, on July 1, 1896, the respondents had made a contract with Douglass and Donohue for this work, amounting to $8,900, and on the seventh day of July, Douglass and Donohue had made a contract with the relator upon the same building for $2,550. Thus the amount in contemplation as possibly due to the contractors was $8,900, while the limit of the relative amount due to the relator was $2,550. The learned counsel for the respondents contends that this view would have required the respondents to retain $2,550 before any payments could have been made to the contractors, which would be a violation of the contract with the contractors. But it is difficult to see how the contractors could legally have objected to such course had it been necessary in face of their own equitable assignment, which alone made such course necessary: If, at the time of this equitable assignment, any money was due from the county on this contract to Douglass and Donohue, or thereafter became due, then it was applicable to any amount that was then or thereafter due to the relator under the sub-contract with Douglass and Donohue. (Beardsley v. Cook, 154 N. Y. 707.) It is admitted that Douglass and Donohue, subsequent to the execution of this assignment, were paid at various intervals more than $5,000. And the foreman of the relator testifies that he told the committee that Douglass and Donohue were' not paying the relator its due, and that he asked the committee of the board or one of its members to withhold the moneys.

That part of the claim which covers building material is based upon an alleged conversion, in that the county, through its officers and agents, refused to permit the relator to assume possession of it, and has at all times refused to permit its removal. Previous to the law of 1892 (County Law) no liability rested upon a county for the malfeasance of its officers. (Albrecht v. County of Queens, supra.) And the new statute imposes no new liability upon them. (Godfrey v. County of Queens, 89 Hun, 18 ; Markey v. County of Queens, 154 N. Y. 675, 686.)

The part of the claim that refers to the roof of the hospital building was itemized, but the sum was audited in a reduced amount, while the board should have passed upon and have allowed or have disallowed the various items. (People ex rel. Sutliff v. Supervisors, 74 Hun, 251, 255 ; People ex rel. Thurston v. Town Auditors, 82 N. Y. 80 ; People v. Supervisors of Delaware County, 45 id. 196.) We cannot dictate the amount, if any, that should be allowed for these items, but we can prescribe the form of audit.

The determination must be annulled as to all parties, without costs in this court.

All concurred (Woodward and Htrschberg, JJ., in result), except Sewell, J., taking no part.

Woodward and Hirsohberg, JJ., concurred in the result, limiting their concurrence only because they do not accord with the doctrine of Kennedy v. County of Queens (47 App. Div. 250), if that case is to be regarded as authority for the proposition that in all cases a claimant may maintain an action at law against a county at his option.

Determination of the board of supervisors of the county of Westchester annulled, without, costs of this appeal.  