People ex rel. Tiernan v. Marsh — 53 N.Y. St. Rep. 62

Majority

p. 62

The People ex rel. Peter Tiernan, Resp’t, v. Nathaniel Marsh et al., composing the Board of Supervisors of Richmond, Co., App’lts.

(Supreme Court, General Term, Second Department,

Filed May 8, 1893.)

Headnote

Justice of the peace—Fees—Richmond county.

Section 2 of chapter 59, Laws 1866, limiting the fees of justices and constables in Richmond county to $300 per annum, was repealed by § 11 of chapter 693, Laws 1866, and chapter 791, Laws 1871, and the justices and constables are entitled to he paid at the state rate of fees even if the entire hill for services rendered exceeds $300.

Appeal from order granting a peremptory writ of mandamus, requiring defendants to audit and pay the claim of relator.

Relator presented to the board of, supervisors a duly verified bill for services rendered, as justice of the peace of the town of Middletown, in criminal cases for felonies arising outside the village of Edgewater, in the sum'of $404.15. The board refused to audit said, claim on the ground that relator had already presented to the town board a.bill for services in criminal cases for misdemeanors committed in the town outside of said village, in the sum of $360, and that, the same had been allowed to the amount of $300; and that, under these circumstances, the board was prohibited by chapter 59, Laws 1866, from auditing the claim or any part thereof. ■ . .

J. D. Van Hoevenberg, for app’lts; W. M. Mullen, for resp’t

Section 2 of chap. 59, Laws of 1866, is re-

pealed. By this section justices of the peace and constables in the county of Richmond were limited to $300 per annum. By chap. 692 of the Laws of the same year a scale of fees for justices of the peace and constables was made for tlic state and all laws inconsistent with this law were repealed except laws locally applicable to villages and cities. The two acts cannot stand together and. the repeal of § 2 of the Laws of 1866, is, therefore, express by virtue of § 11 of the act, chap. 692, Laws of 1866.

In 1871 by cliap. 791, Laws of 1871, the legislature amended the village charter of Hew Brighton, a village in Richmond county, and in this act repealed in words chap. 59,-Laws of 1866, and the. repeal was general and not restricted by the language used in effecting the repeal. If the repeal was effectual then chap. 2S3, Laws of 1875, would not reinstate the section so repealed. It has been decided by Justices Gilbert and Cullen that the restrictive section in the law of 1866 was repealed; by Judge Gilbert in the Kassner case, and by Judge Cullen in the Goggen case. Justice Landon agrees with these judges in this construction of the effect of the repealing words. The justices and constables in Richmond county have been paid according to the state rate of fees even if the entire bill for services rendered exceeded $300.

The order granting a mandamus should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.