The question certified is whether the complaint states facts sufficient to constitute a cause of action. The action is brought to recover for the care, maintenance, education and support of certain minor children, committed to the plaintiff's institution by judicial officers of the defendant.
The County Law expressly provides for the bringing of actions or special proceedings by or against the county in the name of the county (Laws of 1909, chap. 16, article 2, section 4); and we regard it as now settled by authority that an action may be maintained against a county. (Freel v. County of Queens,154 N.Y. 661.) A review of the statutory law on the subject will be found in the opinion of Mr. Justice GOODRICH in Kennedy v.County of Queens (47 App. Div. 250). He pointed out that the provision of the Revised Statutes requiring accounts for county charges to be presented to the board of supervisors for audit was repealed by the County Law, passed in 1892. (Chap. 686.) The question in this case is whether the plaintiff pleaded itself out of court by alleging that it presented its claim to the board of supervisors of the defendant and that the latter "did, as plaintiff is informed and believes, on or about the 22nd day of January, A.D., 1912, wholly disallow said claim."
It is well settled that an audit by a board of supervisors is not open to collateral attack in the absence of fraud or collusion. (People ex rel. Johnson v. Supervisors of DelawareCounty, 45 N.Y. 196; Osterhoudt v. Rigney, 98 N.Y. 222;Foy v. County of Westchester, 168 N.Y. 180; People v.Sutherland, 207 N.Y. 22.) An audit may consist either of the total disallowance of a claim or of its allowance in whole or in part. To "audit" is to hear and examine and includes both the allowance and disallowance
of a claim. (People ex rel. Brown v. Board of Apportionment,52 N.Y. 224; People ex rel. Myers v. Barnes, 114 N.Y. 317.) The liability of the county in this case depended on questions of fact, and an erroneous determination of the board of supervisors could only be corrected on a review by certiorari. The disallowance of the claim by the board of supervisors is, therefore, conclusive on the plaintiff in this action.
The plaintiff relies upon the case of Kennedy v. County ofQueens (supra). That was an action on a contract which the complaint alleged the board of supervisors had by resolution refused to recognize. Such refusal was equivalent to a refusal to audit, which is very different from an audit and disallowance of a claim. Doubtless a person having a claim against a county may either sue directly upon it or present it to the board of supervisors for audit. If the latter course is pursued and the board of supervisors refuse to audit it, two courses are still open, one to compel an audit by mandamus (People ex rel.Thurston v. Town Auditors of Elmira, 82 N.Y. 80), the other to bring an action directly against the county. But if the board of supervisors pass upon a claim and disallow it, either in whole or in part, the sole remedy is to review the determination, if erroneous, by certiorari. If, as a matter of fact in this case, the board of supervisors refused to examine the claim on the merits, the draftsman of the complaint was unfortunate in the use of language. Under the complaint as it stands the plaintiff has no cause of action for the reason that the determination of the board of supervisors is conclusive upon it in this action.
The order of the Appellate Division should be affirmed, with costs, and the question certified answered in the negative.
WILLARD BARTLETT, Ch. J., WERNER, HISCOCK, CHASE, HOGAN and CARDOZO, JJ., concur.
Order affirmed.