
    William Sidney Smith and All Others in a Similar Position, Who Are Taxpayers of Suffolk County, New York, Respondents, Appellants, v. Dayton Hedges, Appellant, Respondent.
    Second Department,
    July 30, 1915.
    Taxpayer’s action—recovery of moneys paid by a county to supervisor on improper audit by board.
    An action may be brought by a taxpayer to set aside audits made by the board of supervisors and to recover on behalf of the county moneys alleged to have been allowed to a supervisor for services in preparing the tax rolls of the town, where certain items for which payment had been made were not properly chargeable to the county under section 23 of the County Law.
    The legal capacity of a plaintiff to maintain such an action is not affected by the mere fact that he is a tenant in common of the lands assessed on which he has paid the taxes, and that they are listed on the assessment rolls in the name of the estate of plaintiff’s ancestor.
    Thomas. J., dissented.
    
      Cross-appeals by the defendant, Dayton Hedges, and the plaintiff, William Sidney Smith, from parts of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 23d day of November, 1914, upon the decision of the court after a trial at the Kings County Special Term.
    
      Selah B. Strong, for the plaintiffs.
    
      John R. Vunk, for the defendant.
   Carr, J.:

The defendant, who was the supervisor of the town of Brookhaven in Suffolk county, presented to the board of supervisors of that county, during the years 1910, 1911 and 1912, certain claims in his own favor for audit and allowance as county charges arising from his official acts in preparing the tax rolls of that town in the respective years above specified. These claims were audited and allowed as county charges in the respective amounts claimed by the defendant. The plaintiff as a taxpayer in said town has brought this action to set aside these audits and to recover on behalf of the county a very considerable sum of money, representing what he claims to be the difference between the claims as allowed and the amounts at which they should have been allowed. After a trial, judgment went in favor of the county of Suffolk against the defendant for the sum of $13,470.82, together with costs and an extra allowance. Both parties to this action appeal from the judgment, the plaintiff on the ground that it is insufficient in amount, the defendant on the claim that the complaint should have been dismissed. The defendant, appellant, presents on this appeal several points which lie at the threshold of the action, and which, if well taken, require a reversal of the judgment and a dismissal of the complaint. The first point is as to the legal capacity of the plaintiff to maintain this action, which is brought under section 51 of the General Municipal Law (Consol. Laws, chap. 24; Laws of 1909, chap. '29.) and kindred statutes. It appears in the record that the plaintiff is a tenant in common, in fee simple absolute, of certain lands in the town of Brookhaven, title to which came to the plaintiff and his cotenant from Robert R. Smith, deceased, the plaintiff’s ancestor. In the town assessment and tax rolls the owner is named as “ Robt. R. Smith Est.” It is urged by the defendant that the form of this assessment of lands owned by a resident of the town was defective, in that the lands should have been assessed to the owners thereof and not to the estate of the decedent Smith, and that this alleged defect so permeated the assessment as to render it absolutely void, and, therefore, that the plaintiff had not been assessed at all and thus brought within the provisions of the statutes which underly this action. The defendant relies upon Hagn&r v. Hall (10 App. Div. 581) and numerous kindred cases, none of which relates to the precise question now under consideration. If there was any informality in this form of assessment it did not go to the extent of invalidating the assessment against the land itself, for, under the provisions of the Tax Law, a mistake in the name of the owner, or an omission of the name, would not affect the validity of the assessment and tax upon the described parcel of real property. The plaintiff did not question the assessment and tax, but paid it in each of the respective years. Considering the purpose of the remedy afforded by the taxpayers’ statutes, we think the defendant’s objection to the plaintiff’s legal capacity to maintain this action is not well taken.

The second of the more important objections to the maintenance of the action is based upon the previous audits by the board of supervisors in favor the defendant. The trial court has found, and the evidence justified the finding, that there was no fraud or collusion in the presentation and audit of these claims. The judgment went upon the legal theory that, as to a great many items set forth in the claims presented for audit, the board of supervisors exceeded their jurisdiction by allowing, as county charges, claims which in law were not county charges. While it had been held uniformly since the early Taxpayers’ Act of 1872 that an action such as this one would not run to attack the validity of an audit made within the jurisdiction of the auditing body, unless there was established fraud or collusion in the audit, it was always recognized that an excess of jurisdiction amounted to an illegality which rendered the audit open to attack. (Board of Supervisors v. Ellis, 59 N. Y. 620; Osterhoudt v. Rigney, 98 id. 222; Hearst v. McClellan, 102 App. Div. 336; People v. Sutherland, 207 N. Y. 22; People v. Journal Co., 213 id. 1.)

That some part of the claim presented for audit was within the jurisdiction of the auditing body was not sufficient to give that body jurisdiction to audit and allow, conclusively, other items of the claim which, if presented by themselves, would have been beyond the jurisdiction. That is also, now at least, the established rule. But where the charges, audited and allowed, are in their legal nature proper charges, then the audit and allowance is conclusive as to the performance and extent of the work on which the charges are based. (People v. Sutherland, supra.)

In the case at bar the claims of the defendant were based upon work done by him in the preparation of tax rolls of the town óf Brookhaven. This work was made generally a county charge by section 23 of the County Law (Consol. Laws, chap. 11 [Laws of 1909, chap. 16], as amd. by Laws of 1910, chap. 279; Laws of 1911, chap. 554, and Laws of 1912, chap. 34), which fixed the amount' allowable for “eachwritten line” and also for “each line of the tax-roll actually extended by him” (the supervisor). The auditing of a claim against the county under this provision of statute involved not only a question of fact as to the number of “lines,” as to which the audit was conclusive, but likewise a determination as to what was a “written.line” and what a “line of the tax-roll actually extended ” within the meaning of the statute, and this question was one of law. It is from the action of the hoard of supervisors on this latter question that the present controversy arises mainly. Many thousands of lines were allowed as “ written fines ” and “ extensions ” by the auditing body and disallowed by the trial court in this action (See 87 Misc. Rep. 439), which disallowance -forms the basis of the large judgment against the defendant. The items rejected in this action as “written fines” and “extensions” in the tax rolls consisted mainly of the printed headings on the various pages, all entries in the tax columns, all footings and recapitulations, numbering several hundred thousands. If these items were extraneous to the tax rolls in the meaning of the statute, then they were not “written lines” or “extensions” for which compensation had been permitted as a county charge, and their allowance as a county charge was beyond the jurisdiction of the auditing body and, therefore, open to attack in an action such as this one. In computing the lines and extensions properly allowable as county charges, the trial court applied the rule declared by this court in Pearsall v. Brower (120 App. Div. 584). Although there was a dissent in that case, we feel ourselves bound by its authority. As to the very numerous items allowed and disallowed on the trial of this action, we see no reason for interference with the decision of the trial court. This view leads, necessarily to an affirmance of the judgment, if this action be at all maintainable. That the action runs to attack the audits made by the board of supervisors, we think is reasonably certain, as the audits of that body were conclusive against collateral attack only to the extent of their allowance as county charges of such items as were in law county charges, either under express terms of the statute or in their legal nature.

We are of opinion, further, that the matters presented on this appeal by the plaintiff as grounds for a modification of the judgment by this court were disposed of properly by the trial court.

The judgment must be affirmed, without costs to either party, as both have appealed therefrom.

Jenks, P. J., Stapleton and Putnam, JJ., concurred; Thomas, J., dissented on the ground that defendant has no power to maintain the action as to at least some of the items audited and allowed by the board of supervisors.

Judgment affirmed, without costs to either party. 
      
      Since amd. by Laws of 1913, chaps. 354, 355; Laws of 1914, chap. 357, and Laws of 1915, chap. 333.—[Rep.
     