People ex rel. Sholes v. Board of Sup'rs

MERWIN, J. The relator was elected under the provisions of chapter 306 of the Laws of 1849, which was passed in pursuance of the authority given by section 16 of article 6 of the constitution. By section 1 of the act of 1849, provision was made for the election of a special surrogate in the county of Oneida and seven other counties, and power was conferred on such officers to discharge the duties of surrogate in their respective counties “in cases of vacancy or inability” of such officer. By section 2, as amended by chapter 108 of the Laws of 1851, they were given the powers of a county judge out of court By section 3 it was provided that: “Such local officers shall receive for the services to be rendered by them under the provisions of this act, such compensation as shall be allowed to them respectively by the boards of supervisors in the said respective counties.” It is quite clear that under this act the relator had power to perform the duties of surrogate in the absence of that officer from the county. An inability then existed, that the statute intended to provide for. If, by virtue of that act, the services in question were rendered, then the compensation provided for such services has been fixed and paid. The relator, however, claims that his services were performed by virtue of the provisions of section 2484 of the Code, and that he is entitled therefore, for the time that he acted, to a compensation equal, pro rata, to the salary of the surrogate, under the provisions of section 2493. To this it is replied that section 2484 applies by its terms only to cases where “special provision is not made by law for the discharge of the duties” of the office, and that, therefore, it does not apply here, as there was a special provision for the special surrogate to act in the contingency that happened. Substantially the same question was considered by this court in Re Tyler, 60 Hun, 566, 15 N. Y. Supp. 366. The court were then of the opinion that sections 2484 and 2493 did not apply, and that the officer was entitled only to such compensation as was allowed by the board of supervisors in the salary which they fixed. No good reason is apparent for now taking a different view. Following the [65] view taken in the Tyler Case, the order or judgment, so far as appealed from, must be affirmed. All concur. Order or judgment, so far as appealed from, affirmed, with costs.