1. We think that section 2125 of the Code, which provides that “ a writ of cretiorari * * * must be granted and served within four calendar months after the determination to be reviewed becomes final,” is not solely a Statute of Limitations, but that by implication it grants the relator four months in which' to procure the writ in cases like this, in wdiieli, although the determining body has finally adjourned after disposition made of the matter, it or its successor at its next authorized meeting can obey the order made by the court.
2. We do not think that the disallowance of the relator’s bill by the board of town auditors in 1895 was a final adjudication thereof upon the merits, for the reason that in the manner and form, in which it was presented the merits thereof were not properly presented to the board, and, therefore, were not determined. (Osterhoudt v. Rigney, 98 N. Y. 222, 234.)
3. For the same reason the refusal of the court to grant a mandamus directing the audit of the bill as first presented was proper, and is not conclusive against the presentation of the bill if now it is in such form and accompanied by such proofs as remove the grounds of the objection to which it was at first open.
4. Clearly the relator had the right to one presentation of his- bil-1 to the board upon its merits, and if his first presentation of it was through his inadvertence so informal or defective as to justify its disallowance, he could obtain relief neither by certiorari nor by mandamus, and, therefore, should be permitted to re-present his bill in such form as to obtain its adjudication' upon its merits.
5. Undoubtedly it was incumbent upon the relator, in order to .collect his fees* to show that he was deputy sheriff de jure. This he did by his affidavit of the fact, fortified by his commission of appointment from the sheriff and by proof that he duly took and filed the oath of. office. We need not here hold that the relator’s *279title to the office is not voidable in the case of a direct attack in a proper action. If such an action should be brought by the Attorney-General it would be “ triable of course and of right, by a jury.” (Code Civ. Proc. § 1950.) The alleged defect in the relator’s title is founded upon the fact of . his non-residence in the county of Clinton. The sheriff “ may appoint such and so many deputies as he may deem proper, not exceeding one for every three thousand inhabitants of the county.” (County Law, chap. 686, Laws of 1892, § 182.) Other statutes seem to imply that he is a local officer. The deputy in civil matters is the servant of the sheriff. (Pond v. Leman, 45 Barb. 152; Whitman v. Haines, 21 N. Y. St. Repr. 41; Colvin v. Holbrook, 2 N. Y. 126.) The relator was appointed deputy sheriff of the county of Clinton mainly in order to qualify him to act as peace officer upon the • line of the Delaware and Hudson Company’s railroad. No action has been brought to oust him; no one claims his -place. The services for which he claims his fees were meritorious, and in the line of official duty. The case is not free from difficulty. The majority of the court think that the board of town auditors were not authorized to go behind th & prima facie case made by the relator of his de jure title, and thus -in a summary manner in effect oust him from his office. (See Matter of Foley, 28 N. Y.. Supp. 611; Matter of Grady, 15 App. Div. 504.)
6. We think the expense of conveying juvenile delinquents to the house of refuge upon the conviction and sentence by a justice of the peace of an offender for an offense committed within his town is a charge upon that town (Town Law, § 165, chap. 569, Laws of 1890) at the rates fixed by the statute; or, if the board of- supervisors had fixed different rates, then at such rates. (Chap. 254, Laws of 1859; chap. 446, Laws of 1874, tit. 1, § 29.)
The determination of the board of town auditors should be reversed, with fifty dollars costs and disbursements.
All concurred, except Herrick, J., dissenting.