People v. Gleason — 82 N.Y. Sup. Ct. 572

Majority

p. 572

The People of the State of New York, Appellant, v. Patrick J. Gleason, Respondent.

Headnote

Power to purchase property for a municipal corporation does not authorize the audit of bills — indictment for a/adiiing a false claim.

The power to purchase property for Long Island City neither grants nor implies the power to audit hills against it; that power is expressly delegated to and vested in the common council of said city.

An indictment charging a person with the crime of-auditing a false claim against a municipal corporation is defective if it fails to state that it was the duty of such person to audit hills against such municipality, nor can an allegation of power to purchase he construed to mean a duty to audit.

Appeal by tlie plaintiff, The People of tlie State of New York, from an order of tlie Court of Sessions, lield in and for tlie county ■ of Queens, on tlie 16th day of October, 1893, sustaining a demurrer and dismissing an indictment charging the defendant with falsely • auditing a bill against Long Island City.

John Fleming, District Attorney, for the appellant.

Frcmcis II. Ycm Yechten, for the resj>ondent.

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 tlie 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. (Laws 1871, chap. 461, vol. 1, p. 904.)

The indictment is defective, in that it fails to state that 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 of 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

p. 573

tbe common council tlie duty of auditing sucli 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.. ¥e are of opinion it does not. ,

The order must be affirmed.

DyeMAN and OulleN, JJ., concurred.

Order affirmed.