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People ex rel. Hurd v. McClellan

102 A.D. 21 Court N.Y. App. Div. English

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The People of the State of New York ex rel. William B. Hurd, Jr., Respondent, v. George B. McClellan and Others, Constituting the Board of Estimate and Apportionment of the City of New York, Appellants.

Headnote

County judge of Kings county — compensation of, for drawing jurors — waived by waiting to demand the same until two years after his term expired — the statute contemplates its being determined in advance of the service.
An application made by a former county judge of Kings county to the board of estimate and apportionment of the city of New York, pursuant to section 1151 of the Code of Civil Procedure, to have fixed and paid his claim for services rendered by him as such county judge in connection with the drawing of jurors for service in the courts of record of Kings county, is properly denied, where it appears that he rendered the services in question from year to year throughout his term without attempting to secure compensation therefor, and that his demand for compensation was not made until more than two years after the close of his term.
Semble, that this section of the Code of Civil Procedure contemplates that the compensation for the services rendered thereunder shall be fixed in advance, and that unless so fixed it cannot be recovered.
Appeal by the defendants, George B. McClellan ■ and others, constituting the board of estimate and apportionment of the city of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of May, 1904, granting the relator's motion for a peremptory writ of mandamus requiring the defendants to meet and entertain, consider and pass upon the rela
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tor’s claim for services, and if allowed to raise and provide the money to pay the said compensation.
The services in question were rendered by the relator while he was county judge of Kings county, and were performed in connection with the drawing of jurors for service in the courts of record of that county. The relator’s claim was presented under section 1151 of the Code of Civil Procedure, which relates to the compensation allowed for the drawing of jurors in Kings county and which reads as follows :
■ “The board of supervisors of the county must allow to each judge, including each justice of the Supreme Court, for the service performed by him, as prescribed in this article,[1] such compensation, as the board deems reasonable and proper. Such compensation at the sudjl allowed and established for justices of the Supreme Court prior to the year nineteen hundred and one is continued; except that from and after July first, nineteen hundred and one, it may be increased in amount to a sum not to exceed the amount now paid for additional compensation to the justices of the Supreme Court .resident in the first judicial department. The board of estimate and :apportionment of the city of New York may so fix the same, and shall raise and provide the money to pay the said compensation.” (See Laws of 1901, chap. 299.)
James D. Bell [John J. Delany with him on the brief], for the appellants.
Robert H. Elder [Edward H. M. Roehr and Arthur J. Martin with him on the brief], for the respondent.

Similar provisions and this provision have been construed repeatedly and invariably as contemplating compensation fixed in advance for the services. Such services have heretofore been rendered by county judges and by judges of the'City Court upon the assumption that inasmuch as compensation had not been sa fixed for them they should not receive it. (See Matter of Washington Street Asylum & P. R. R. Co., 115 N. Y. 442 , 447; Easton v. Pickersgill, 55 id. 310 ; Suth. Stat. Const. § 309.) The present provision, so far as it

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affects the relator, was in force when he took office. We must presume that lie knew of it. He rendered these services from year to year, throughout his term, without seeking action to afford him any compensation for them. The first intimation or suggestion of any claim therefor is a demand made more than two years after the close of his term, and consequently after the end of his services. We think that the relator has so far acquiesced in this practical construction as to forfeit all right to the relief demanded.

The order should be reversed, without costs, and the application denied, without costs.

Hirsohberg, P. J., Bartlett, Woodward and Jenks, JJ., concurred ; Hooker, J., not voting.

Order reversed, without costs, and application denied, without costs.

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