23 How. Pr. 121 | N.Y. Sup. Ct. | 1862
By the court,
The relator, Clark F. Whittemore, was the clerk of the city court of Brooklyn, and prosecutes this writ of mandamus against the defendant, who is the treasurer of the county of Kings. The defendant refused to pay the relator his salary as fixed by the board of supervisors of the county. It is not disputed that the services of the relator have been rendered, and the salary earned. The real ground of controversy is certain fees for the naturalization of aliens, which the defendant has received in the course of his official duty for ser
It appears by the alternative writ of mandamus and the defendant’s answer thereto, which is not controverted, that the relator’s claim has been duly demanded from the board of supervisors, and that on the 29th June, 1861, they adopted a resolution directing the county treasurer to pay the relator’s bill of $2,213.33, whenever he should make and furnish an affidavit that he had paid to the treasurer all the fees and fines, either in civil or criminal cases, including naturalization fees, which the relator or his deputy has received during his term of office. It also appears by the return, that the relator refused to furnish such affidavit, and that he claims as his own, and retains in his own hands, and refuses to pay over to the county treasurer, a large amount of fees received by him as such clerk, during his term of office, in cases for the naturalization of aliens, and that therefore the treasurer refused to pay the salary when it was demanded.
The statute declares that the clerk of this court shall receive the same fees for his services in civil cases, as provided for similar services by the county clerk, and shall pay such fees to the county treasurer of Kings county. (Laws of 1850, p. 148, § 7.) By section 25 of the same act, he is to be paid an annual salary by the county treasurer, in quarterly payments, to be fixed and determined by the supervisors of Kings county. ' The fees which the board of supervisors insist shall be paid into the treasury, and which the relator claims a right to retain as his own property, are those received by him for the naturalization of aliens. The primary distinction in the classification of the business of the courts is into civil and criminal cases. This distribution includes all business of every description. There are no mixed cases partly civil and partly criminal.
Whatever fees the relator retains in his hands, and referred to in the return to the alternative writ, are the property of the board of supervisors, and the source, or one of the sources, from which they are to pay the relator’s salary. And as the court may exercise a discretionary power, as well in refusing as in granting a peremptory writ of mandamus, we think the judge at special term did right to deny the motion under the circumstances disclosed in the papers.
Order should be affirmed, with costs.