Wilson v. Bleloch

Gaynor, J. : 1. Section 178 of the Town Law (chapter 569 of the Laws of 1890, as amended by chapters 124 and 312 of the Laws of 1904) fixes the compensation of town clerks, supervisors, assessors, justices of the peace, overseers of the poor and election officers at two dollars a day “ for each day actually and necessarily devoted by them to the service of the town in the duties of their respective offices, when no fee is allowed by law for the service ”; except that assessors may be given a compensation of three dollars a day by the Town Board, and that has been done in this case. By section 160 the town clerk is made a member of the town board. It is composed of the supervisor, town clerk and justices of the peace, and there is no other board of that official or statute name. Section 3 of chapter 344 of the Laws of 1893 provides that the town clerk of a town of a population of 20,000 or more (which is the case of this town) “ shall be entitled to receive the same compensation for attending all meetings of town boards in his town as each other member of such board, in addition to all compensation, salary and fees to which he is now entitled by law for the performance of all other duties of said office This does not create any new duties; it only provides an additional compensation for an existing duty, i. e., for attending meetings of the town board, of which he is a member. Theretofore such attendance was in the same class with all of his duties, and for which a compensation of two dollars a day. was allowed him; thereafter it was singled out by the said act and he was allowed to receive for it three dollars in addition to his general compensation (Matter of Town of Hempstead, 86 App. Div. 321). In the case before us the town clerk has construed the said act to make it his duty to meet with the other boards of the town, viz., the board of assessors, the board of auditors and the board of highway commissioners, and to charge the town three dollars for each [193] of such meetings, and his bill to that effect has been audited and paid. This is error and the money must be refunded. It is true that the said act .of 1893 says “Town Boards”, but the plural was used negligently. There is only one town board in a town. The other boards are boards of the town, it is true, but he could not act with such boards without being a member of them, and the act does not make him such. Bor does it impose on him the duty of keeping their minutes. They dp that themselves, and the act makes no change in that respect. 2. As we have already seen, the compensation of supervisors chargeable against the town is two dollars for each day actually and necessarily spent in the service of the town, “ in the duties of their respective offices”. The supervisor has charged this compensation, and also, and for the, same days, two dollars a day for attending meetings of the boards of the town of which he is by law a member, or which he is required to attend as supervisor. This is illegal. He can charge nothing in addition to the per diem compensation of two dollars to which the law restricts him. There is no statute permitting him to charge an additional compensation for attending meetings of boards or officials, as is the case with town clerks, as we have seen. The additional compensation of two dollars a day audited and paid for attending • such meetings must therefore be refunded. 3. The case of the assessors is the same; they are limited to a general compensation of three dollars a day, and there is no statute giving them additional compensation. In this case they have charged three dollars a day additional for the days spent in making up a list of trial jurors in conjunction with the supervisor and town clerk, as required by section 1035 of the Code of Civil Procedure, having also charged and been allowed and paid their regular compensation of three dollars a day for the same days. This is illegal, and the amount so received must be refunded. Judgment for the plaintiff, to be settled before Mr. Justice GrAYNOR. Jenks and High, JJ., concurred; Woodward, J., read for defendants, with whom Hooker, J., concurred.