Opinion
May 21, 1920.
Percy L. Housel [ Robert S. Pelletreau with him on the brief]. for the appellant.
Joseph Wood, for the respondent.
Order affirmed, with ten dollars costs and disbursements, upon the opinion of Mr. Justice CROPSEY at Special Term.
JENKS, P.J., MILLS, RICH and BLACKMAR, JJ., concur; JAYCOX, J., dissents upon the ground that the exclusive remedy was an application for audit to the county auditor of the county of Suffolk.
The following is the opinion delivered at Special Term:
Before the enactment of the provisions in the County Law making counties municipal corporations and directing actions by or against them to be in the name of the county there were numerous decisions holding a county could not be sued in its name, and the same has been stated since the County Law enactment. ( Albrecht v. County of Queens, 84 Hun, 399.) But the language of the County Law is plain and broad (§§ 3, 4, and see § 6, added by Laws of 1917, chap. 578), and the more recent and controlling decisions hold that an action against the county in its name may be maintained. ( Kennedy v. County of Queens, 47 App. Div. 250; New York Catholic Protectory v. Rockland County, 212 N.Y. 311; N.Y.C.R.R. Co. v. County of Westchester, 173 App. Div. 263; affd., 224 N.Y. 646; Western N Y Inst. for Deaf Mutes v. County of Broome, 82 Misc. Rep. 63; American Pipe Const. Co. v. Westchester County, 225 Fed. Rep. 947.) A person having a claim against a county has the option of presenting it for audit or of suing upon it directly. ( New York Catholic Protectory v. Rockland County, 212 N.Y. 311. ) The special auditor's act for Suffolk county (Laws of 1916, chap. 107, as amd. by Laws of 1917, chap. 58) does not change this rule. Defendant's motion for judgment on the pleadings denied, with ten dollars costs.