(dissenting):
The sales of land for unpaid taxes in the county of Queens are made by the county treasurer of that county under special statutes, which provide, among other things, that where no bids are received for lots offered for sale they shall be struck down to the town in which they are located. For striking off such lots the county treasurer is entitled to a fee of one dollar and fifty cents a lot, besides *337the expenses of advertising, which is made a charge against the town.
It has been the custom of the defendant, who is the county treas* urer of Queens county, to charge these fees, so allowed to him, against the town without submitting his account and claim therefor to the town auditors for examination and allowance, and to pay himself his fees and charges in that way. This action is brought to prohibit that practice, but the complaint relates especially to the town of Newtown, in that county. The facts are agreed upon and the trial court dismissed the complaint.
We cannot take the same view of the case. It is against all the precedents in analogous cases to permit the defendant to liquidate his own claim against the different towns for official fees. It is the safe and fundamental rule prevalent 'in all cases that unliquidated demands against towns and counties in this State must be submitted to the proper boards for examination and allowance, especially all officers whose compensation depends upon statutory fees must sub* mit their claims to the proper boards of auditors constituted by law for their examination. The defendant occupies no position above these rules of law. It is true his fees are prescribed by statute, but so are the fees of sheriffs, constables, commissioners of highway and many other officers. That fact constitutes no reason why the claims of the defendant should not be submitted to the town auditors. His expenses are not fixed, neither are the number of lots specified for which he may charge, and the number should be submitted to the scrutiny of the examining auditors, and there is nothing in the statutes exempting him from such scrutiny. The simple fact that he is the bookkeeper of the county and has accounts with" the different towns, and receives money from which he can pay his own claims, so far from constituting an argument in his favor, rather operates the other way. His bills should be audited and paid in the usual manner.
Neither have we any trouble in permitting the plaintiff to maintain this action.
The judgment should be reversed and a new trial granted, with costs to abide the event.
Judgment affirmed, with costs.