Delano v. County of Suffolk

Headnote

Counties — when action against county may be maintained though claim has not been presented for audit —.effect of special auditing act.

Delano v. County of Suffolk, 192 App. Div. 459 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 21, 1920, which affirmed an order of Special Term denying a motion by defendant for judgment in its favor upon the pleadings. The following question -was certified: “ Does the complaint state a cause of action? ” The action was to recover from the county of Suffolk the sum of $4,605.25, claimed for publishing the notice of redemption from 'the tax sale of 1917 in Suffolk county, provided for by sections 130, 152, 158 and 159 of the Tax Law prior to the amendments of section 152 in 1919. Defendant contended that the complaint failed to state a cause of action because an action against a county to recover a county charge does not lie; if such an action does lie, it is only when it is alleged that the claim has been duly presented to the

auditing authority and audit refused, or liability wholly repudiated; the action will not he, if at all, until plaintiff alleges that the provisions of the special act requiring certification by the county treasurer have been complied with, or that such certification is withheld arbitrarily, fraudulently or unreasonably. The Special Term held that an action against the county in its name may be maintained, a person having a claim against a county having the option of presenting it for audit or suing upon it directly, and that the special auditor’s act for Suffolk county (L. 1916, ch. 107, amd. L. 1917, ch. 58) does not change this rule.