People ex rel. Schultz v. Myer — 41 N.Y. St. Rep. 150

Majority

p. 150

In the Matter of The People ex rel. Louis W. Schultz, App’lt, v. Theodore W. Myer, Comptroller, Resp’t

(Supreme Court, General Term, First Department,

Filed November 13, 1891.)

Headnote

Coroners—New York—Fees.

It is the duty of the coroners of the city and county of New York to pay over to the city all fees received by them when acting in place of the sheriff, and they are not entitled to receive their salaries until they do so,

Appeal from an order of the special term denying a motion for a peremptory mandamus to compel the comptroller to pay the salary of the appellant for June, 1891.

Appellant contends that the fees collected and received by the coroners of the city and county of New York in actions in which replevin writs are issued to them for execution are not payable into the city treasury, but are the personal and exclusive property of said coroners.

Respondent contends that the coroners must account to the comptroller under § 56 of the consolidation act; that the coroners are officers of the city as well as of the county; that the respondent is not estopped by acquiescence, and that the petitioner has not established a clear legal right.

D. P. Hays, for app’lt; Theodore Connoly, for resp’t.

Prior to the year 1878, the coroners of the city and county of New York were paid for their services by fees, regulated by statute. For certain of the services rendered the fees were paid by the county of New York, and when called upon to perform the duties of sheriff they were entitled to receive the same fees as paid for such services to the sheriff and to be paid in like manner.

By chapter 304 of the Laws of 1874, the county of New York and the corporation known by the name of The Mayor, Aider-men and Commonalty of the City of New York were consolidated into one body corporate and politic, and by the second section of that chapter it was provided “ that for all purposes the local administration and government of the city and county of New York, shall be performed by the one corporation aforesaid. All charges and liabilities now existing against the said county or which may hereafter arise or accrue in said city and county of New York and which but for this act would be charges against or liabilities of said county, shall be henceforth deemed and taken to be charges against or liabilities of said corporation or shall be defrayed or answered unto by it.” And after the passage of this act the liability for the fees of the coroners became a charge against the city and county of New York.

By chapter 256 of the Laws of 1878 it was provided that each of the coroners of the city and county of New York after his election should be paid in full satisfaction for his services a yearly salary of $5,000, and that salary and certain allowance should be in lieu of all his fees or compensation theretofore a charge upon the county of New York, or the mayor, aldermen and commonalty of the city of New York.

p. 151

The effect of this legislation substituted a fixed salary of $5,000 in lieu of the obligation of the city and county of New York to pay to the coroner the fees which prior to that time he was entitled to receive from the county of New York or the municipal corporation, but he was still entitled to receive for his own use the fees paid to him for services rendered which theretofore had not been a charge against either the county of New York or the municipal corporation.

In 1880 an act was passed which was entitled “An act to amend chapter 335 of the Laws of 1873 ” (the city charter), “ and to reduce the burden of taxes to be levied in said city,” known as chapter 521 of the laws of that year. By that act the salaries of certain officers were regulated, and by § 3 of that act it provided as follows:

“ No officer or person who is paid a salary for his services from the city treasury shall receive to or for his own use any fees, costs, allowances, perquisites of office, commissions, percentage, or moneys paid to him in his official capacity; but all fees, costs, allowances, perquisites, commissions, percentages and money so paid or received by any of such officers or person shall be the property of the city, and shall be paid by him into the city treasury; and e.very officer or person who shall receive any fees, perquisites, commissions, percentages, or other moneys which belong to the city and should be so paid into the treasury shall before he shall be entitled to receive or be paid his salary make, under oath, a detailed statement and return to the comptroller, in such form as he may prescribe, showing the amount of all such moneys received by him since the last preceding statement and returns, and shall produce a receipt showing the payment of such sums into the treasury.”

It is clear that the relator was within the provisions of this section. He was an officer,' was paid a salary for his services from thé city treasurer, and the fees paid to him for services rendered as coroner were fees paid to him in his official capacity.

The provisions of this section cannot be restricted to officers that before the consolidation had been officers of the municipal corporation, because the act itself provided for the compensation to be paid to the clerks of the superior court and the court of common pleas and to the district attorney of the city of New York. . Neither of those officers were ever officers of the municipal corporation, and by the consolidation of the city and county all officers whose duties were administrative or governmental within the political division known as the city and county of New York were officers of the one municipal corporation, and the salaries paid to them were paid from the city treasury, and all such officers elected subsequent to the passage of the act of 1880 were subject to its provisions and were entitled to receive the compensation paid to them by the city only upon compliance with its provisions.

This provision of § 3 of chap. 521 of the Laws of 1880 was re-enacted in § 56 of the Consolidation Act. There can be no doubt but that by this legislation it was the intention of the

p. 152

legislature to restrict all public officers in the city of Mew York to whom a salary was paid by the city to such salary as their compensation for the services rendered by them, and that all provisions of law then existing by which any such officer was allowed to retain for his own use any fees by whomsoever paid was repealed, and after the passage of the act of 1880 there was no provision of law by which a coroner of the city of Mew York could legally receive for his own use any fee for services rendered in his official capacity from any person; but all fees paid to him for his services as such coroner or in an official capacity belonged to the city of Mew York.

The re-enactment of § 1 of chap. 256 of the Laws of 1878 as § 1767 of the Consolidation Act, whereby it was provided that the salary and allowance paid to the coroner should be in lieu of all his fees or compensation theretofore a charge upon the city and county of Mew York, must be read in connection with the reenactment of § 3 of the act of 1880 in § 56 of the Consolidation Act, and reading the two sections together they are not at all inconsistent.

The salary paid to him is in lieu of his fees or compensation theretofore a charge upon the city and county of Mew York, but he shall not receive for his own use any fees paid to him in his official capacity, but receive the same for and pay the same to the corporation.

This construction gives full effect to both of the sections of the consolidation act, and continues the policy that was adopted by the legislature on the passage of the act of 1880, in relation to the officials of the city and county of Mew York.

We think, therefore, that the relator was not entitled to receive his salary from the city until he had complied with the provisions of § 56 of the consolidation act, and that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and Daniels, J., concur.