(dissenting.) This is an action on three certificates of indebtedness, dated January 1, 1864, payable to the plaintiff or his order, on their production and surrender to the supervisor of the defendant on the first day of March, 1865, 1866 and 1861 respectively, with interest. They were issued on or before the date thereof by the supervisor and town clerk of Oanton, pursuant to a vote of a-town meeting held December 12, 1863, by which a bounty, to the amount of $300, was offered to volunteers.
It is averred, and not disputed, that, at the time of issuing these certificates, and in consideration thereof, the plaintiff, then being under twenty-one years of age, volunteered and was mustered into service; that afterward, on the 9th day of February; 1864, the legislature passed an act (chap. 8, Bess. Laws, 1864) legalizing the proceedings of this town meeting, and declaring the liabilities incurred and certificates issued to be a debt against the town.
*416Upon the trial the defendant offered to prove, in substance, that, at the time when the defendant volunteered, it was agreed on between him and his father, William S. Brown, with whom he was residing, that, if the father would consent to such volunteering, he should receive for himself the bounty; that, thereupon, at that time, and in pursuance of that agreement, and by direction of the plaintiff, the supervisor of Canton delivered these certificates to said William S. Brown, the father; that afterward, with the knowledge and consent of the plaintiff, and by his direction, the father transferred them to one Woodbridge, and received the amount thereof; that they were presented by said Woodbridge, when they became due, to the supervisor, and were paid and canceled ; that the plaintiff afterward, without consent of the defendant, obtained possession of the certificates, and demanded payment of them.
There are two questions which arise; the one, as to the right to bring such an action against a town; the other, as to the effect of the payment to the assignee, Woodbridge. The judge who tried the case decided both of these questions in favor of the plaintiff, and directed a verdict for the amount of the certificates.
1st. Can an action like this be maintained, or must the claimant present his demand to the board of town audit?
In the case of Brady v. The Supervisors of New York (2 Sandf. S. C., 460), affirmed by the Court of Appeals (10 N. Y., 260), for the reasons given by the court below, the plaintiff sued the supervisors for services rendered to the county. By 1 Revised Statutes, marg. p. 384, section one of title three, entitled “ Of legal proceedings in favor of and against counties,” it is provided that, whenever any controversy or cause of action shall exist between a county and an individual, such proceedings shall be had at law or in equity for trying and settling the controversy, &c., as in other suits between individuals and corporations. And by 1 Revised Statutes, marg. p. 364, section one of title one, it is expressly provided that each county, as a body corporate, has capacity *417to sue and be sued. The plaintiff in the case above cited claimed that, by these and other provisions, he had a right to bring an action against the county, in the name of the supervisors, to recover for his services. But Chief Justice Oakley, on a very full examination of the subject, held that this provision was intended to give “ a remedy against the county for such causes, and no other, as could not be presented to and examined and allowed by the board of supervisors as county charges. Of this class, continues the court, would be claims for the malfeasance of county officers, and claims arising on torts for which the county might be liable. ‘Such controversy,’ in the first section, means, as we think, such a claim or cause of action as cannot be settled and adjusted on the application of the party in the exercise of the ordinary powers of the board of supervisors, and which is not a county charge until it passes into judgment.” Without going over the whole of the able opinion, it is enough to say that it fully establishes the doctrine that suits against a county can only be brought for such causes of action as cannot be settled by the board of supervisors; such as torts, &c. This same doctrine is reiterated in the strongest manner in the case of Martin v. Supervisors (29 N. Y. 645), where the court say that no action can be maintained against a county to recover for a county charge. This doctrine has by this court been applied to the case of towns. In Bell v. The town of Esopus (49 Barb. 506), it was held that an action will not lie against a town to recover a claim arising on contract. In fact, this conclusion necessarily follows from the decision in Brady v. The Supervisors. For the provisions of law in respect to claims and actions against towns are alitiost precisely similar to those in respect to claims and actions against counties. A town may sue and be sued. (1 R. S., marg., p. 337, § 1.) So may a county. (1 R. S., marg., p. 364, title 5, § 1.) And the provision (1 R. S., marg., p. 356, § 1) that whenever any controversy or cause of action shall exist between a town and an individual, such proceedings may be had either in law or in equity for the purpose of trying and finally settling such controversy,. &c., *418is, with, scarcely the variation of a word, the very same provision that exists as to counties. (1 R. S., marg., p. 384, title 3, § 1.) And this provision, as has above appeared, has been held by the Court of Appeals to give 'a right of action onlxj in such cases as do not arise on contract; such, that is, as torts, malfeasance of officers and the like.
The case ex parte Lynch (2 Hill, 45), which has been thought to be in conflict with these cases, is not so in the least. There a mandamus was refused because an action lay against the city of New York. The right to bring an action against a city on contract is not in question. Such actions are frequent. There is not, in respect to cities, any quasi judicial tribunal authorized to audit claims, such as the supervisors are as to counties, and the board of audit as to towns. But the doctrine decided by the Court of Appeals is, that in respect to counties, the law has established a different tribunal from the courts of law, and has required claims (on contract) to be presented to the board of supervisors for allowance and settlement, and has refused to permit actions at law.
The law of 1840, chap. 305 (1 R. S., 5th ed., marg., p. 355, art. 5), provided for a board of town auditors, “for the purpose of auditing and allowing the amounts of all charges and claims payable by their respective towns.” (§ 1.) The corresponding language in respect to supervisors is that they shall have power to “ examine, settle and allow all accounts chargeable against such county.” (1 R. S., marg., p., 367, § 2.) The language is so nearly the same that, as is held in Bell v. Town of Esopus, the decision in Brady v. The Supervisors must apply.
It is true that by the general act of 1864, chap. 8, the proceedings of this town meeting were legalized, and the liability incurred was declared to be a debt against the town, to be paid with interest. But the fact that it thus became (what perhaps it was not before) a debt against the town, does not change the law as to the mode of collecting or enforcing this debt. It is because it is a debt, and is not a cause of action arising out of tort, that it must be presented to the *419board of town audit, and cannot be sued upon. Chief Justice Oaklet, in the ease above cited, says: “ There are many cases reported in which writs of mandamus have been issued to boards of supervisors. There is none of these where the amount to be audited was not fixed by statute, or where the amount claimed was not admitted,” &o. And it is said by the Court of Appeals, in Martin, v. Supervisors, ut supra, that mandamus is allowed to “ set them in motion, and compel them to adjudicate.” It is argued by the plaintiff, that because, as is claimed, the amount of the debt is liquidated, therefore, the town may be sued. But the doctrine is not that a county may be sued on a liquidated claim, and that it is only the unliquidated claims which must be presented to the board of supervisors. The doctrine is, that a county can be sued only for such causes of action as malfeasance and tort, and the like, such “ as are not a county charge until they pass into judgment.” And the doctrine, as to towns, is similar. The ease of Bell v. Esopus was not decided on the ground, that the claim was unliquidated, but on the ground that it arose on contract.
The act of 1864, also declares that such a certificate as that in question shall be evidence of the amount of the debt, of the time from which interest is payable, and of the persons to whom it is payable. But it does not declare the certificate conclusive on these points, and they are probably open to other proof. Without some such enactment, the certificate would probably not have been admissible in evidence at all. The signing it was an act which was probably at the time not authorized.
The object of the statute of 1864, was to give validity to the action of those towns and counties, which, in the earnestness of their zeal, had voted to contribute of their property to the support of the national government in its struggle. It was not necessary for this purpose to disturb or unsettle the general manner of enforcing claims against towns and counties. That was already provided for and settled. Boards of town auditors had been established, who were authorized *420to audit and allow all claims payable by their towns. The difficulty was, that these certificates and. similar liabilities were not (probably) legal claims. It was the object of this act to make them so. If they were legal claims, then they could be enforced like other claims against the town. And the legislature did not, by the act of 1864, intend that any means should be authorized for the collection of these debts which did not exist in respect to other town debts. And it seems to be a wise system of law which provides, in respect to towns and counties, that claims against them shall be presented to their respective officers for allowance" and settlement. Certainly, the general rule seems to be well settled, that claims against towns and counties are not to be collected by action, except such as have been above mentioned; that is, claims on tort, malfeasance, and the like. And it is undesirable to make such a claim as the present, which arises strictly on contract, an exception to this general rule; unless the language of the legislature is positive that it shall be such an exception. But merely declaring that this claim is a debt against the town, does not necessarily imply that it is to be enforced in a manner different from that in which other debts are enforced.
I think, therefore, that this action cannot be maintained, and being of that opinion, I need not examine the other question.
The judgment should be reversed with costs..
Judgment affirmed.