
    PEOPLE ex rel. DEANE v. SUPERVISORS OF GREENE.
    
      N. Y. Supreme Court, Third District, Third Department, Special Term,
    
    
      December, 1883.
    Mandamus.—Officer de facto ; compensation'.
    A mandamus will not lie at the instance of a tax-payer, to compel a board of supervisors to disallow a die facto county officer’s bill for services, when such services have been in fact rendered in good faith, and the supervisors have already audited and allowed the bill, and issued a certificate of indebtedness therefor, which has passed by assignment to a bona fide holder for value, before the application for mandamus.
    If the supervisor’s audit was erroneous, the remedy is by certiorari.
    
    Application for a mandamus by James A. Deane, a tax-payer of Greene county, to compel the board of supervisors of Greene county to reject and disallow a claim of William Kortz for $3,721.02, for services performed by said Kortz as coroner of said county, , and audited and allowed to said Kortz by said supervisors.
    It appeared that the supervisors had issued to Kortz a certificate of election as coroner. But, sub-_ sequently, Kortz was ousted from office, and Andrew Getty was adjudged to be coroner in his stead, certain" ballots for Getty having been illegally rejected by the county canvassers.
    Meanwhile, Kortz had in good faith performed for the county certain services as coroner. The further facts appear in the opinion. •
    
      Griswold & Connell, for relator.
    
      Frederick Werner (J. J. & F. Werner, attorneys), opposed.
    I. The officer de jure could not recover against the county if the audit were paid (Dolan v. Mayor of N. Y., 68 N. Y. 274; McVenny v. Mayor, &c. of N. Y., 80 N. Y. 185; Terhune v. Mayor, &c. of N. Y., 88 N. Y. 247).
    II. The supervisors cannot reconsider their audit. Inferior jurisdictions cannot review their action when once legally exercised and power exhausted (People, etc. v. Supervisors, County of Schenectady, 35 Barb. 408; People, etc. v. Stocking, 50 Id. 573; Clark v. Norton, 58 Id. 434; Supervisors of Onondaga v. Briggs, 2 Denio. 26).
    III. The tax-payers’ redress is by action (L. 1881, c. 531). . . , .
    IY. A certificate of indebtedness having been issued by the supervisors to Kortz and assigned in good faith to a bona fide holder, the county cannot escape liability (People ex rel. Central Nat. B’k v. Fitzgerald, 54 How. Pr. 1).
   Westbrook, J.

The facts are as follows: The board Of supervisors of Greene county, acting as county canvassers, at its annual meeting in 1882, de-" cided that William Kortz, and not Andrew H. Getty, had been elected coroner of Greene county, and- gave to him the certificate of election. In reaching the conclusion that. Kortz, and not Getty,, was chosen, the board refused to count and allow to. Getty certain ballots on which his name was printed with a different middle letter, on the ground that it had no power to go back of the ballots to ascertain the intent of the voters. The supreme court, both at special and general terms, confirmed the action of the board by refusing a mandamus to compel it to count for Getty the ballots, printing his name with a wrong middle letter. (This action of the supreme • court is not set out in the motion papers, but the court takes judicial cognizance of its own proceedings.) Kortz acted as coroner in good faith, and performed services as such in good faith until November 13, 1883, when he was ousted from office by the judgment in the action brought in this court by the people and Andrew H. Getty against him to recover possession of the office. For services in the office of coroner, and disbursements in rendering such services, all of which were rendered and disbursed previous to the judgment of ouster, Kortz presented a bill, properly verified, to the supervisors of Greene county at its annual session in 1883 for audit and allowance. It was audited and allowed by the board in good faith, the amount thereof incorporated in the tax levy, and certificate duly issued to Kortz for the amount thereof, which had been assigned toa tona fide holder for value, previous to the initiation of this proceeding which seeks to compel the board to cancel the audit and allowance. The mandamus asked is refused for the following reasons: 1st. The board of supervisors of Greene county, by awarding to Kortz the certificate of election as coroner authorized and empowered him to act as such, and as such services were valuable and legal, there is no impropriety or illegality in their audit or payment. It is possible (but on that point no definite opinion is expressedX that under section 1953 of the Code of Civil Procedure, Getty may recover from Kortz the fees and perquisites of the office covered by and included in the audit, but it is clear, that Getty, who did not render the services 'nor disburse the money, could not obtain payment therefor from the county, nor could he truly swear, which he must do to obtain the .allowance, that he had rendered the services and made the disbursements. The granting of the mandamus would, therefore, exempt the county from payment for lawful services of which it had the full benefit. 2nd. As Getty cannot obtain an allowance of the same bill from the county, but his remedy, if any he has, is against Kortz ; there is no property nor money of the county to be wasted, which gives the relator, as a tax-payer, any standing to.maintain this proceeding. 3rd. If the audit to Kortz is illegal, it can be reviewed by certiorari, or an action brought, to recover the money paid thereon, when paid. 4th.. A certificate was issued in good faith to Kortz, and was assigned to a tona fide holder for value before this proceeding was initiated, and as against such tona fide holder for the value of the certificate, the county is. remediless (People ex rel. Central Nat. Bk. v. Fitzgerald, 54 How. Pr. 1). 5th. The exercise of a sound discretion forbids its issue. As this proceeding was initiated in good faith, and presents a new and reasonable question for adjudication in which the relator has no greater personal interest than any other tax-payer of Greene county, the application for a mandamuses denied, without costs.  