People v. Gleason

This is an appeal from an order sustaining a demurrer to an indictment. It is not necessary to notice the motion to dismiss this appeal, as we think the decision below was right upon the merits. The power to purchase neither grants nor implies the power to audit bills against Long Island City, but that power is expressly delegated to and vested in the common council of said city. 1 Laws 1871, p. 904. The indictment is defective in that it fails to state it was the duty of the defendant to audit bills against Long Island City. The object of the statute is to punish for a breach or duty, and, if the person owed no duty, there could be no breach. It is an essential ingredient of the statutory crime that the public officer owed a duty which he violated, and, unless such fact is alleged, the case does not fall within the purview of the statute. The act of 1890, giving the commissioners power to buy, does not repeal all parts of the charter of Long Island City that devolve upon the common council the duty of auditing such bills as it is not inconsistent therewith; and even if it did repeal the charter, it would be necessary to allege in an indictment that it was the duty of the defendant to audit, in order to charge a crime. The allegation of power to purchase cannot be construed to mean a duty to audit. There is but one point in this matter, as the learned district attorney concedes that, if the allegation of power to purchase does not sufficiently allege a duty to audit, then the indictment is bad. We are of opinion it does not.

Order affirmed.

All concur.