Tyler v. Board of Supervisors

fice of surrogate is vacant or the surrogate is disabled, by reason of sickness, absence, or lunacy, and a special provision is not made by law for the discharge of the duties of his office in that contingency, the duties of his office must be discharged, until the vacancy is filled, or the disability ceases, as follows:” (1) By the special surrogate; (2) by the special county judge; (3) by the county judge; (4) by the district attorney. It will be observed that section 2484 provides who shall act in case of a vacancy, absence, or other disability, only where there is no special provision of law for the discharge of the dirties of that office in such contingency. In Tompkins county, a local officer was elected to discharge the duties of surrogate in the absence of that officer. Hence we are disposed to adopt the appellant’s theory that the provisions of section 2484 are not applicable in this case. Assuming, then, that the statute of 1858 conferred upon the decedent the authority to act as such surrogate independent of section 2484, the question arises whether section 2493 has any application to this case. That section provides that an officer who acts as surrogate, “as prescribed in the last nine sections,” must be paid for the time he so acts a compensation equal pro rata to the salary of the surrogate or county judge. In this case the decedent acted as surrogate, not as prescribed by the sections of the Code relating to that subject, but independent of those sections, and under the provisions of the statute of 1858, which declared that lie should receive for his services such compensation as the board of supervisors should allow. Therefore we are of the opinion that section 2493 of the Code of Civil Procedure is not applicable to this case, and that the decedent was entitled only to such compensation as was allowed by the board of supervisors. If, however, our conclusion that the provisions of the Code are not applicable in this case is wrong, still, as those provisions were not complied with, it is difficult to discover upon what theory the appellant is entitled to the relief sought. Ho proof of the authority of the decedent to act as such surrogate was given, nor order made, as required by sections 2487 and 2488 of the Code. We think the making of such proof and the obtaining of such an order was a condition precedent to the testator’s right to act as such surrogate, if acting under the provisions of the Code; and that, at least as to him, his acts were so -far unauthorized that he was not entitled to the compensation provided for by section 2493. But it is said that the act of 1889, (Laws 1889, c. 221,) which was a statute to legalize the official acts of the decedent performed between January 1, 1886, and January 1, 1889, by reason of any failure to make proof as to his authority, has by relation supplied the required authority for the acts of the decedent as such surrogate. By this statute, his acts were legalized as to third persons, so far as the legislature could do so; but we think it was not its purpose or intent to change the status of the decedent so far as the question of compensation was concerned, nor do we think that such was the effect of the statute. There is also another reason why this order should be affirmed. Section 2493 provides that the officer or person therein mentioned “must be paid for the time during which he so acts a compensation equal pro rata to the salary of the surrogate or county judge.” We think a fair construction of this provision requires us to hold that, even if entitled to compensation under the Code, the decedent was entitled only to such compensation while acting as such surrogate, and that he was not entitled to compensation when not so acting. The papers read on the motion in this case show that the testator acted during only a portion of the time for which he sought compensation. Therefore, in any event, his claim was for too much, and properly disallowed. People v. Green, 64 Barb. 162 ; People v. Cady, 2 Hun, 224 . These considerations lead to the conclusion that the order should be affirmed. , Order affirmed, with $10 costs and disbursements.