(dissenting). I dissent and vote to affirm the determination of the town board.
*59The town of Colonie now is and since the 1st day of January, 1933, has been a town of the first class operating upon a budget plan or system. During the years 1932 to 1935, inclusive, petitioner was the health officer of that town. On April 9, 1936, he presented to the town board four claims for services and disbursements and these claims were subsequently audited.
Section 27 of the Town Law, in a town operating on the budget system, such as the town of Colonie, provides that the town board shall fix the salaries of all elected and appointed town officers and that such salaries shall be in lieu of all fees, charges or other compensation for all services rendered to the town. All fees and moneys received by the town officer in connection with his office shall become the property of the town and each town officer is required to submit a monthly report of and pay such moneys to the supervisor. From January 1,1933, petitioner received a salary fixed by the town board. He now contends that he is also entitled to the fees incident to his office.
An important question to determine is the status of the office occupied by petitioner. In the prevailing opinion Justice Crapser describes him not as a town officer but as “ an independent public officer.” The question at once arises as to the nature of the office he occupies. Certainly he may not be regarded as a State officer, neither is he to be treated as a county officer. It seems very clear to me that he must be regarded as a town officer. (State Const. art. 10, § 2; People ex rel. Bush v. Houghton, 182 N. Y. 301; Matter of Towne v. Porter, 128 App. Div. 717.) The doctrine announced in the Houghton case was reaffirmed in People ex rel. Werner v. Prendergast (206 N. Y. 405). Section 20 of the Public Health Law constitutes the town board the local board of health and directs that body to appoint a competent physician who shall be the health officer of the municipality. The town board of Colonie appointed petitioner and he qualified and filed the oath required of all town officers. Furthermore, it is clear that petitioner is a town officer from the nature of his duties which are purely local.
The board, therefore, properly rejected claims of the petitioner numbered 273, 274 and 275. These claims relate to fees arising subsequently to January 1, 1933, to which petitioner asserts he is entitled for reporting communicable diseases to the State Department of Health. Clearly those fees belong to the town. In claim numbered 274 the petitioner also seeks to charge the town $68.50 for attending a health officers’ convention. The board audited this item at $46.50. In its return the board alleges that the amount at which the claim was audited represented the reasonable expenses of petitioner. The statement in the return is conclusive. The *60only evidence offered in support of the claim was petitioner’s own affidavit. He was an interested witness and the board was not bound to accept his testimony. It was authorized to act upon its own knowledge and award such a sum as in its judgment seemed proper and this court has no jurisdiction to review that action. (Matter of Lanehart, 32 App. Div. 4.)
Petitioner also claims that he is entitled to the sum of fifty-five dollars for diphtheria cultures. Section 21 of the Public Health Law provides that the board in its discretion may allow the health officer for extraordinary services by reason of infectious diseases. It is entirely discretionary with the board whether or not it shall make such allowance and we may not review that discretion.
Petitioner also contends that during the year 1932 he was entitled to fees for reporting communicable diseases to himself Section 25 of the Public Health Law provides that it is the duty of every physician to report to the local health officer the name and address of every person apparently affected with a communicable disease. If there be no physician in attendance this duty is imposed upon certain private persons. The physician or other person giving the notice is entitled to the sum of twenty-five cents therefor which is a charge upon the town. In turn the local health officer is required to report the same to the State Department of Health and for such service he shall be paid by the municipality upon the certificate of the State Department of Health a sum not to exceed twenty cents for each case so reported. Petitioner contends that while he was acting as a private physician he discovered a number of cases of communicable diseases and reported that information to himself and that consequently he is entitled to a fee of twenty-five cents in each instance. In addition he also claims twenty cents each for reporting the same to the State Department of Health. During the year 1932, when he was not on a salary basis, he was entitled to the fee for reporting to the State Department of Health. He was not, however, entitled to any fee in cases coming to his attention as attending physician. Obviously he is not entitled to a fee for reporting to himself a communicable disease. To hold that he may act in a dual capacity in this respect seems quite absurd. If he discovered a case of communicable disease in his practice as a physician it was his duty to report it. The information which he acquired as a private physician was information to himself as a public officer.
The order of the town board is annulled and the matter is remitted to the town board of the town of Colonie, Albany county, N. Y., for the purpose of auditing the claims of the petitioner in accordance with the provisions of the opinion, with costs of fifty dollars and disbursements to the petitioner against the town.