"Sec. 12. General Powers.-The board of su-, been made with a county clerk in Livingston pervisors shall: 1. Have the care and custody of the corporate property of the county.

串 *

Section 26 of the County Law is as follows: "Sec. 26. County Records. Such boards shall have the general charge of the books and records of the county, subject to the legal rights of the officers using or having custody of the same, and shall provide for their safe-keeping. They may authorize county officers having the official custody or control of any such books and records, or of maps and papers, to cause copies thereof to be made and certified for the public use; and it shall be their duty to cause the same to be made and certified whenever by reason of age or exposure, or any casualty, the same shall be necessary. Any officers making such transcripts or copies shall be paid such sum therefor as may be just: but such payment shall not exceed a sum to be certified by the county judge, or a justice of the Supreme Court of the judicial district, as reasonable therefor. Such board of supervisors shall not accept and pay for any such services, until the work shall be examined and approved as to its manner and form of execution, by such judge or justice; nor shall any board of supervisors order any such work to be done until such judge or justice, after an examination, shall certify that

such work is necessary for the security and safety of the public records."

Section 240 of the County Law (formerly Laws of 1892, c. 686, § 230), so far as is applicable, is as follows:

"Sec. 240. County Charges.-The following are county charges:

"9. The moneys necessarily expended by any county officer in executing the duties of his office in cases in which no specific compensation for such services is provided by law.

"15. The expenses necessarily incurred, and sums authorized by law, or by the board of supervisors, pursuant to law, to be raised for any county purpose."

county, elected after the act of 1903 took effect, it would be illegal and unenforceable. Curtis, however, was elected before the act took effect, and at all times referred to in the contract obtained his compensation as county clerk from fees allowed by statute. Such fees in civil actions are provided by section 3301 of the Code of Civil Procedure and for services generally by section 3304 of said Code.

Section 3280 of the Code of Civil Procedure

(now section 252 of the Judiciary Law [Cons. Laws, c. 30] and section 67 of the Public Officers' Law [Cons. Laws, c. 47]) provides: form all the duties required of him, in the course and practice of the court, without fee or reward, except as expressly prescribed by law." "Each public officer, upon whom a duty is expressly imposed by law, must execute the same without fee or reward, except where a fee or other compensation therefor is expressly allowed by law.

"Sec. 3280. Each clerk of a court must per

*

This court has held that necessary ex

penditures of a special or exceptional character in executing the duties of the office of county clerk for services not required of him under the general laws may properly become a county charge under subdivision 9 of section 230, now section 240 of the County Law. People v. Sutherland, 207 N. Y. 22, 32, 100 N. E. 440. See matter of Walsh v. Supervisors of Albany County, 20 App. Div. 489, 47 N. Y. Supp. 35.

Although the respondent Curtis expressly disclaims in his brief that section 316 of the Real Property Law (Cons. Laws, c. 50) has any application to the contract in question, we think that its provisions should be con

quoted. That section (formerly section 265) provides as follows:

The provisions quoted relating to the power of boards of supervisors must be read in connection with the statutory provisions re-sidered in connection with the other statutes lating to the power and duty of a county clerk. His general powers and duties are provided by section 161 of the County Law (chapter 11 of the Consolidated Laws, formerly Laws of 1892, c. 686), which, so far as applicable, is as follows:

"Sec. 161. General Powers and Duties.-The county clerk shall:

"1. Have the custody of all books, records, deeds, parchments, maps and papers, deposited in his office in pursuance of law, and attend to their arrangement and preservation.

"2. Provide at the expense of the county, all necessary books for recording all papers, documents or matters authorized by law to be recorded in his office.

By section 1, c. 200, Laws of 1903, which took effect April 24, 1903, it was provided that each clerk of the county of Livingston thereafter elected should receive an annual salary, and it also provided in section 2 that: "It shall be the duty of said clerk to perform all services which he is or shall be required or authorized by law to perform by virtue of or by reason of his holding such office, for the state, for the county, and for individuals, including his duties as clerk of every court of which he is or shall be clerk; and no compensation, payment or allowance shall be made to him for his own use for any such services, except the salary aforesaid."

"Sec. 316. Indexes.-Each recording officer must provide, at the expense of his county, proper books for making general indexes of instruments recorded in his office, and must form indexes therein, so as to afford correct and easy reference to the books of record in his office. There must be one set of indexes for mortgages or securities in the nature of mortgages, and another set for conveyances and other instruments not intended as such mortgages or securities. Each set must contain two lists in alphabetical order, one consisting of the names of the grantors or mortgagors, followed by the pames of their grantees or mortgagees, and the other list consisting of the names of the grantees or mortgagees, followed by the names of their grantors or mortgagors, with proper blanks in each class of names, for subsequent entries, which entries must be made as instruments are delivered for record. This section, so far as relates to the preparation of new indexes, shall not apply to a county where the recording officer now has general numerical indexes.

By chapter 7 of the Laws of 1811 (6 Webster, 99), in which it is recited that it had been found expedient that the clerks of the counties on the military tract or of which the military tract shall be a part in this state should have a numerical index, it was enacted that the clerks of the several counties

It is quite clear that if the contract had aforesaid "make and keep a numerical index

of the military lots within his county." The
county of Livingston is not one of the coun-
ties on the military tract. By chapter 204 of
the Laws of 1827 it was further provided:
"That it shall be the duty of the clerks of
the several counties comprehending any part of
the military tract or of the Cayauga and Onon-
daga reservations where an index is not already
provided, to make and keep a numerical index
of the military and reservation lots within his
county."

been made under the act of 1826, the clerks of the said counties shall complete the same by bringing them down to the present time, and that in either case the said clerks shall keep the said indexes complete by adding to the lists as deeds and mortgages shall be sent in to be recorded, and in said act it was further provided that the county clerk is authorized to charge in his account against his county the necessary expenses incurred in purchasing said books and at the rate of 50 cents for every hundred names which he may enter in said books. By section 7 of chapter 855 of the Laws of 1869 the Legislature provided substantially in accordance with the provisions of section 26 of the County Law, hereinbefore quoted. That statute and the act of 1843 have been considered by the courts.

We are of the opinion that the county of Livingston did not have a general numerical index within the meaning of section 816 of the Real Property Law. Prior to 1826 there was no general provision applicable to all the counties of the state relating to indexes to the record of deeds and other instruments recorded in the office of the clerks of the several counties of this state. It was held as late as 1881 that the indexing of a mortgage In People ex rel. Welch v. Nash, 3 Hun, 535 is no part of the record thereof. Mutual Life the board of supervisors of Cattaraugus Ins. Co. of N. Y. v. Dake, 87 N. Y. 257. By county had, by resolution, authorized the chapter 313 of the Laws of 1826 it was made county clerk to make certain new indexes of the duty of the clerks of the several counties the records in his office at a specified compenof the state, except counties where such in- sation. Before completing his contract his dexes are already provided, and except the term of office expired, and his successor recity and county of New York, whenever di- fused to allow him to use the records for the rected by the court of common pleas of the purpose of completing his contract. The recounty, to provide proper books therefor and lator sought by mandamus to compel the into index deeds and mortgages as by the act cumbent of the office to permit him to have provided; and the boards of supervisors of access to the records for the purpose of comsaid counties were directed to audit and al-pleting his work. The court held that the low the moneys expended by the said clerks in purchasing said books and 25 cents for each and every hundred names contained in said indexes. By chapter 204 of the Laws of 1827 it was, among other things, expressly provided:

"That it shall be the duty of the board of supervisors of the several counties of this state in which the clerks are required to make a general index" pursuant to the act of 1826 to audit and allow said clerks "such further compensation for services rendered in pursuance of the said act as the judges of the court of common pleas in such counties respectively, shall certify to be just and reasonable.'

power then given to the board of supervisors to make such orders concerning the corporate property of the county as they may deem expedient did not confer upon such board authority to contract for indexes to be made by any other than the incumbent of the office. The court further held that the records of conveyance required by law to be kept in the clerk's office of each county are not necessary for and have no relation to the exercise of any corporate or administrative power of the county. Referring to the county clerk, the court say that his office is created by the The acts of 1826 and 1827 did not author- Constitution and the laws of the state, and ize an expenditure on behalf of the county that his duty of making and keeping the recin excess of that in said acts expressly pro- ords in his office is not for the benefit of the vided. It was held in 1840 that a county county, but for the public at large. The clerk who, after completing the general in-court also held that the special provisions dexes of his county as provided by said act, of the act of 1869 (hereinbefore mentioned) continues the same from year to year there- did not authorize the board of supervisors after does so with reference to his own con- to contract for making new books and recvenience in making searches and has his com-ords, except as in the act expressly provided. pensation in the fees allowed by law for An appeal was taken to this court (People those searches, and has no legal claim upon ex rel. Welch v. Nash, 62 N. Y. 484, 486), the county for compensation. People ex rel. where it was held: Traver v. Supervisors of Dutchess County, 24 Wend. 181.

"That the subject of indexing such books is regulated by the statute (Laws of 1843, c. 199), By chapter 199 of the Laws of 1843 it was dexes shall be made, devolves the duty of makwhich prescribes the manner in which the inprovided that the clerks of the several coun- ing them upon the county clerk, and provides ties in the state in which general indexes of for his compensation for so doing. The board deeds and mortgages have not been made and of supervisors had no power to change the method of indexing prescribed by statute, nor to preserved according to the act of 1826 shall transfer the duty or power of making the inprovide proper books for making such gen-dexes from the county clerk to any other pereral indexes, and shall form indexes therein son." in alphabetical order as in said act provided, and that in the counties where indexes have

Section 7 of chapter 855 of the Laws of 1869 was substantially re enacted as section

ing that the contract between the plaintiff and the county was ultra vires.

26, c. 686, Laws of 1892. Chapter 199 of the Laws of 1843 was repealed by chapter 547 of the Laws of 1896, and section 265, which In Schenck v. Mayor, etc., of N. Y., 67 N. is substantially the same as section 316 of Y. 44, the court upheld the power of a board the present Real Property Law, was enacted. of supervisors to direct the purchase of furWhen the Real Property Law was re-enacted niture for a county jail. Boards of supervisas chapter 50 of the Consolidated Laws, sec-ors are given express authority to acquire tion 265 of the former Real Property Law real property for county jails. The mainwas continued as section 316, and the said tenance of a county jail requires that it acts of 1826, 1827, and 1843 were expressly should be furnished. Authority of boards of repealed. supervisors to purchase such furniture is [3] There is nothing in section 26 of the necessarily and reasonably inferred from County Law authorizing boards of supervis- the express authority conferred upon them. ors to contract for the making of the indexes In Worth v. City of Brooklyn, 34 App. Div. provided by the contract with Curtis. The 223, 54 N. Y. Supp. 484, it appears that withauthority conferred by that section is con-out any fault or negligence on the part of fined to making and certifying copies of the plaintiff, the county clerk of the county, books, records, maps, and papers whenever, 32 large cases in his office fell from their by reason of age or exposure or any casualty, places, and in their fall scattered and mixed the same shall be necessary. The contract thousands of papers therein contained, breakwith the defendant Curtis was not to copying, tearing, and destroying books, records, a book, record, map, or paper within the and documents, and thereby for the time bemeaning of that section. ing greatly impairing the usefulness of the

no specific compensation for such services is tion 240). It does not appear that any allowprovided by law (County Law, § 230, now sec

ance was made to the county clerk for his personal services in connection with said work.

[4] Section 316 of the Real Property Law county clerk's office as a place of record for entirely omits any provision for compensa-public documents. The moneys expended by tion to the county clerk for his personal serv- the county clerk in rearranging said papers ices in connection with the work therein proand repairing the injuries to the books, recvided. Such omission is significant, because ords, and documents were held to be necesprovision for such compensation was includ-sarily expended by a county officer in executed in the statutes of 1826, 1827 and 1843. It ing the duties of his office in a case in which appears from the statutes quoted that the county clerk has the custody of the books, records, and papers in his office, and that boards of supervisors simply have general charge of such books and records, subject to the legal rights of the county clerk. The only [5] Where a duty is expressly imposed by affirmative duty resting upon boards of super-law upon a county clerk and no fee or other visors relating thereto is to provide for their compensation therefor is allowed by law, the safe-keeping. None of the statutes quoted or board of supervisors have no authority to that have been called to our attention author-audit and allow a claim therefor. People ex ize a board of supervisors, either expressly rel. Hawley v. Howard, 152 App. Div. 621, or by necessary and reasonable inference, to 137 N. Y. Supp. 496. cause new general indexes of the records of a county clerk's office to be made. The authority to make indexes of records in a county clerk's office, so far as authority exists at all by general statute, seems rather to be devolved upon the county clerk. It is not necessary now to decide whether the money necessarily expended by the respondent to make the indexes now under consideration which have been accepted by the county and are in use by the public in the county clerk's office should be audited and paid by the board of supervisors of his county.

A reference to a few of the authorities called to our attention will show that they do not sustain the respondent in this case.

[6] Where a statute forbids a person to ask or receive compensation for services in an official or trust capacity greater than prescribed by law, an agreement to pay such extra compensation creates no binding obligation. Carpenter v. Taylor, 164 N. Y. 171, 58 N. E. 53.

A practical interpretation of the statutes relating to the power of boards of supervisors against the respondents' contention appears from the fact that many counties of the state have, at different times, applied to the Legislature for authority to make new indexes of conveyances and other instruments in the county clerk's office in such counties, and numerous special acts have In Wile v. Wilson, 93 N. Y. 255, this court been passed by the Legislature for that purhad before it a contract made by the board pose. Reference is had to many acts relating of supervisors of the county of Monroe. That to indexes affecting the city and county of contract had been fully executed and the New York, and the counties of Kings, Queens, compensation therefor had been paid. The court did not pass upon the power of the board of supervisors to make the contract to which it was a party. In deciding the rights of the parties in the action it did so, conced

Albany, and Bronx, and also to acts of which the following are typical: Chapter 442, Laws of 1863 (Cayuga county); chapter 278, Laws of 1866 (Oneida county); chapter 924, Laws of 1867, and chapter 858, Laws of 1868 (Rich

COLLISION WITH VEHICLES-REQUESTED INSTRUCTION— NEGLIGENCE.

mond county); chapter 171, Laws of 1863 | 2. STREET RAILROADS
(Seneca county); chapter 235, Laws of 1884
(Dutchess, Cayuga, Tompkins, and Chemung
counties).

A great many other acts have been passed by the Legislature to authorize special work relating to records in the county offices, the applicants for such legislation thereby assuming that it is necessary to apply to the Legislature for such authority. There are too many of such acts to be enumerated in this opinion, but the following are illustrative of the acts referred to: Chapter 212, Laws of 1837 (Chenango county); chapter 240, Laws of 1832, and chapter 157, Laws of 1833 (Ulster, Sullivan, Delaware, and Greene counties); chapter 155, Laws of 1844 (Cayuga county); chapter 356, Laws of 1849 (Franklin county); chapter 79, Laws of 1851 (Niagara county); chapter 399, Laws of 1873 (Herkimer and other counties); chapter 219, Laws of 1910 (Sullivan county); chapter 123, Laws of 1861 (Rensselaer county); chapter 221, Laws of 1879 (Westchester county).

[7] No power, either express or implied, is conferred by statute upon boards of supervisors after having made a void contract to compromise and pay the same if some discount is allowed thereon. Village of Fort Edward v. Fish, 156 N. Y. 363, 375, 50 N. E. 973. It was held in that case, referring to the power to compromise an illegal claim on the ground that it is done in good faith to avoid litigation, that:

"Sound public policy will not permit the courts to countenance this dangerous method of evading a statute, for it will always be done under the claim of good faith.

*

The judgment should be reversed, and a judgment should be entered in favor of the plaintiff for the relief demanded in the complaint, with costs in all courts.

WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, HOGAN, CARDOZO, and SEABURY, JJ., concur.

Judgment accordingly.

(217 N. Y. 475)

MERTZ v. CONNECTICUT CO. (Court of Appeals of New York.

1916.)

March 21,

In such an action, it was error to refuse a requested charge that, if the motorman saw the automobile in time to stop and took the risk of trying to run by without a collision, he was negence that the motorman was not convinced that ligent, where the evidence warranted an inferit was safe to pass, but took a chance.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 261; Dec. Dig. 118(4).] 3. APPEAL AND ERROR 1067 - HARMLESS ERROR REFUSAL OF REQUESTED INSTRUC

TIONS.

The refusal of such charge, in connection with the previous erroneous charge, was prejudicial to plaintiff, since it permitted the jury to infer that if the motorman was merely conVinced, without the exercise of due care on his part, that he could pass the automobile, he was not negligent.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. 1067; Trial, Cent. Dig. § 475.]

Hiscock and Cuddeback, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Louis C. Mertz against the Connecticut Company. A judgment for the defendant was unanimously affirmed by the Appellate Division (161 App. Div. 941, 145 N, Y. Supp. 1133), and plaintiff appeals. versed, and new trial ordered.

Re

Fred'k W. Sherman, of Portchester, for appellant. Eugene F. McKinley, of White Plains, for respondent.

POUND, J. This action was brought to recover damages for injury to property sustained by reason of the alleged negligence of defendant, a street railroad corporation, in running into and overturning plaintiff's automobile on the night of July 27, 1907, on Main street, in the village of Portchester.

The automobile was a seven-passenger Mercedes. The driver had turned it from the street railroad tracks in the street to drive across the sidewalk into the adjacent yard when the engine stalled, leaving the rear wheels close to the tracks of defendant and the top or cover projecting over them. Plaintiff and his companion got out of the automobile, and one of them had started to crank it when the trolley car of defendant came along and struck the projecting top, overturning the automobile and damaging it. The runWITH VEHICLE-INSTRUCTIONS-NEGLIGENCE. ning board of the car scraped the rear wheels In an action for damage to an automobile of the automobile. whose engine stalled while it was close to a street car track and which was struck by a car before the driver had time to crank it up, an instruction that if, in the exercise of reasonable care by a proper lookout, the motorman was convinced that the automobile was far enough away from the track so that he could run by without hitting it, he was not negligent, was erroneous as making the test of negligence whether the particular motorman was convinced, not whether a reasonably prudent motorman would have

1. STREET RAILROADS 118(4)

COLLISION

The theory of the plaintiff was that the motorman had a plain and unobstructed view of the automobile, obviously in dangerous proximity to the track, when he was 150 feet away, and that he came on without slackening his speed, although he might easily have stopped his car in time to avoid the collision. The motorman testified for the defendant that he saw the automobile in time to stop, [Ed. Note. For other cases, see Street Rail- and then shut off his power without applyroads, Cent. Dig. § 261; Dec. Dig. 118(4).] ing his brake; that he thought he could clear

been.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the automobile; that he did not see the top Read in connection with the evidence and of the automobile extending back of the body | the charge, however, the request seeins propbecause the top was down, the light was poor, and the automobile was a light gray in color, and thus it was inconspicuous; that he again put on his power, and then, when he saw the top when he was within ten feet of the automobile, he shut off power, put on the brake, and tried unsuccessfully to stop his car.

WILLARD BARTLETT, C. J., and CHASE, HOGAN, and CARDOZO, JJ., concur. HISCOCK and CUDDEBACK, JJ., dissent.

(217 N. Y. 470)
PEOPLE ex rel. GOLDSCHMIDT v. BOARD
OF EDUCATION OF CITY OF
NEW YORK.

"I ask your honor to charge that if the motorman saw the automobile in time to stop the car and took the risk of trying to run by without a collision, without slowing down to enable (Court of Appeals of New York. March 21, him to stop before hitting the automobile, he was negligent. The Court: I will leave it to the jury to say. (Exception.)"

1. MUNICIPAL CORPORATIONS 211-BOARD OF EDUCATION-CIVIL SERVICE LAW.

This request does not in itself present very of education of New York City under rules of Relator, appointed to a position by board definitely the point sought to be raised on the municipal civil service commission whereby this appeal, viz., that if the motorman saw his appointment was for probationary period, if the automobile in close and dangerous prox-officer he should be notified during the period his conduct was unsatisfactory to the appointing imity to the track, manifestly helpless there, that he would not thereafter be retained, if not, and had time to stop the car, and did not his retention to be equivalent to a permanent slow down so as to enable him to stop before appointment, held not to be removed by notifihitting the automobile, but took the obvious cation of removal by committee of supplies ratichance of hitting it in running by, he was period, since under subdivisions 2 and 3 of secfied by the board of education only after the negligent as matter of law. tion 17 of its by-laws only the beard itself

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes