
    The People of the State of New York ex rel. The Newburgh News Printing and Publishing Company, Relator, v. The Board of Supervisors of Orange County, Respondent.
    Second Department,
    October 20, 1910.
    Elections — claim for printing ballots — contract with county clerk construed — power of supervisors to audit claim.
    Although a county clerk gave a written order for printing election ballots which stated that the cost should not exceed the amount audited and allowed by the board of supervisors for similar work in the last presidential election, which sum was over ¡¡¡>4,000, the printer is only entitled to the reasonable value of the work, with the limitation that it cannot exceed the amount of the previous audit. Such order does not constitute a contract entitling the printer to the sum previously audited.
    Moreover, as under the County Law it is the duty of the board of supervisors to audit claims against the county for printing election ballots, any contract for the printing of such ballots made by the county clerk is subject to such audit, and under the contract aforesaid the supervisors will not be compelled by certiorari to audit the account at the same amount as they allowed on the prior audit.
    Former payments by the county do not establish the reasonable value of the relator’s services,
    Hirschberq, P. J., and Woodward, J., dissented.
    • Certiorari issued out of the Supreme Court and attested on the 19th day of June, 1909, directed to Walter II. Brewster and others, constituting the board of supervisors of the county of Orange, commanding them to certify and return to the office of the clerk of the county of Orange all and singular their proceedings had in regard to the auditing of a certain bill of the relator.
    
      Henry Bacon, for the relator.
    
      M. N. Kane [J. F. Halstead with him on the brief], for the respondent.
   Rich, J. :

The relator by writ of certiorari asks for an order and judgment directing the board of supervisors of Orange county to reconvene and reconsider their action on its bill and to audit and provide for the payment thereof as originally presented. On October 9, 1908, the county clerk of Orange county gave a written order to the relator to print the ballots required for the approaching general election, which contained the following clause: The cost of same must not exceed the amount audited and allowed by the Board of Supervisors for similar work at the last presidential election.” The amount thus referred to was $4,409.60. The relator, after delivering the ballots, rendered a bill therefor too the board of supervisors for $4,409.60, together with a bill for $136.50 for additional printing not connected with the ballots. The two bills were audited together at $1,599.35. The relator contends that the letter of the county clerk provides the compensation for printing the ballots, and that.the board was without power or authority to change or reduce this amount. I do not think this contention sound. By section 86 of the former Election Law (Gen. Laws, chap. 6 [Laws of 1896, chap. 909], as amd. by Laws of 1905, chap. 643) the county clerk was required to provide the requisite number of official and sample ballots for general elections. By section 18 of said statute (as amd. by Laws of 1901, chap. 95) the expense of printing and delivering the ballots is made a charge upon the county. By subdivision 2 of section 12 of ^tlie former County Law (Gen. Laws, chap. 18 [Laws of 1892, chap. 686], as amd. by Laws of 1908, chap. 410), which has been re-enacted in subdivision 2 of section 12 of the present County Law (Consol. Laws, chap. 11; Laws of 1909, chap. 16), it is made the duty of boards of supervisors to audit all accounts and charges against the county, and direct annually the raising of sums necessary to defray them in full, and by subdivision 11 of section 230 of the former County Law, which has been re-enacted in subdivision 11 of section 240 of the present County Law, the accounts of the, county clerk for the services and expenses incurred under the law respecting elections, other than for militia and town officers, are made county charges. While the claim of the relator arises from its employment by the county clerk and is a charge for which the county is liable, it is nevertheless' subject to the adjudication of the auditing board of the county. This would be true had the county clerk agreed upon a fixed amount which the latter should receive as compensation for its work. (People ex rel. Hamilton v. Supervisors, 35 App. Div. 239.) The acceptance of the order did not create a contract obligating the county to pay to the relator absolutely the sum of $4,409.60 for the printing of the ballots, and by limiting the compensation to that sum did not have the effect of creating a liability for that amount. (United Press v. New York Press Co., 164 N. Y. 406.) Its legal effect was to entitle the relator to the reasonable value of the work, with the limitation that in no event should such reasonable value exceed the audit of 1904. The case of People ex rel. Kinney v. Supervisors of Cortland (58 Barb. 139) is cited by the learned counsel for the relator as an authority sustaining its contention. In that case the county clerk had agreed on a price to be paid, and it was established that the price was a reasonable compensation for the services rendered. The foundation of that decision was the reasonableness of the compensation agreed upon. It appears in the case at bar that the sum which it is sought to compel the county to pay is at the rate of $87.50 per 1,000 ballots, while the rate paid in eleven other counties from which the respondent obtained information ranged from $3.50 to $24 per 1,000, an average of $16.87. The price allowed the relator was $25 per 1,000 ballots, $1 more than the highest price paid by any of the eleven counties and much greater than the average. The contention that the relator should succeed because the county had in prior years paid the amount now demanded is without force. The former payments cannot be held to establish the reasonable value of the relator’s services. It appears that several hearings were had in the matter of the relator’s bills, and that careful and commendable consideration was given the claim by the board of supervisors. The amount allowed cannot be said to be unreasonable, and the writ of certiorari must be quashed, with fifty dollars costs and-disbursements to the respondent.

Burr and Carr, JJ., concurred; Hirschberg, P. J., and Woodward, J., dissented.

Writ of certiorari quashed, with fifty dollars costs and disbursements to the respondent.  