124 N.Y.S. 334 | N.Y. App. Div. | 1910
In the year 1899 and continuously thereafter until the 31st day of December, 1904, the appellant Cmtis was county clerk of the county of Livingston, and his compensation was paid by fees. On. the 12th day "of March, 1900, the board of supeiwisors of said county entered into a written .agreement with the said defendant Curtis whereby he agreed “ to make and complete a full, proper and legible index of all deeds of conveyance on record in the office of clerk of the county of Livingston, filed and recorded during the period '
By the terms of such agreement said indexing was to be carried on with reasonably convenient speed and to be completed within four years from the date of the agreement. ■ Curtis was'to receive “ six cents each for all names, whether of grantors or grantees or of the wives- or husbands of said' grantors or grantees in said deeds expressed,' entered on the slips to be .prepared and completed by the said Henry B. Curtis in accordance with the provisions of this contract; said sum of six cents each to be paid by the party of the first part to the party of the second part and this payment to include the indexing of grantors and grantees completed.”
The appellant immediately entered upon the performance of.this agreement, employing and paying for such assistance as was 'necessary to enable him to carry it out. By a further written agreement made on the 13th-day of January, 1903, the original contract was modified by striking, out the requirement that the work should' be completed within four years.. Payments were made from time to time upon this agreement to the amount of $8,057.94. In November, 1905, and- after the completion of the "contract he presented an itemized statement covering the entire account and showing a balance due of $6,407.94, of which the sum of $650 was' earned after his term of office expired. This account was rejected by the board of supervisors.' .There was no claim o.r suggestion that the work had not been fully and fairly performed. .There Was no-claim that the statement contained any improper .items; .nor is there any claim, so far as the proof shows, that the sum paid, was exorbitant. The rejection was based upon the opinion of Mr. Bissell, a prominent lawyer of the city of Rochester, which had. been furnished to the board upon its request and which opinion was to the effect that the original contract was -void and that the board of. supervisors' exceeded its authority in entering into it at all..
It seems quite apparent from the proof that the work which the defendant was authorized to do was needed for the proper and intelligent use of the deeds recorded in the office of the clerk. Deeds which had been recorded had not been, indexed. The old index volumes were nearly filled and additional ones were needed. They were in distinct volumes so that an examination,-as they then were, made it necessary to look through 'two sets of indexes: The appellant testified: “ The principal difficulty with them was they were full of errors; they were unreliable.” , Some of the leaves containing the indices had been displaced and it was exceedingly, difficult, especially for one not familiar with the office, to make a proper abstract of some of the property in the county. In fact it does not seem to be seriously contended that the work Which the board authorized to be done in pursuance of its contract with the defendant was not just and proper and for the benefit of the county at large.
As already suggested, there is no claim that the defendant Cur
We have at the outset, therefore, the proposition that the defendant- has' faithfully; honestly and fully performed an agreement entered into in good faith arid he has been paid .along year by year a part of- his claim and is now, seeking to recover the balance, less $1,500, because of the compromise agreement. The county is now ' using and has the .benefit of the work which he faithfully performed either himself or through assistants for whose services he paid.
In this', condition of affairs he. is entitled to the compensation in accordance' with the agreement as adjusted by the compromise, unless there is some insurmountable legal objection to the payment . of his claim; . ' '
It will be observed that during most of this time the appellant was the county' clerk and the' custodian of the records. (People ex rel. Welch v. Nash, 62 N. Y. 484.) As to the work which was performed after the term of office had expired, there .'seems to.have been no controversy between the appellant and the then incumbent of the clerk’s office as to -his, right to the use-of the books..for the ' purpose óf completing his agreement, so that question is not in the case as in the One just'cited.
It is the claim of the -respondent, and the court below-has so' found, that the board of supervisors had no- authority' to enter into this contract. '. Section 12, subdivision 1, of. the County Law (Laws of 1892, chap.' 686),.in defining the general powers of the board of supervisors, provides .that they shall “have the care and custody of .the corporate property of the county.” Section 26 of that law -provides: “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
The board of supervisors of a county is, of course, a body of limited powers granted to it by the Legislature of the State. 'Hot-, withstanding this limitation upon its powers it possesses inherent authority to perform acts to preserve or benefit the corporate property of the county intrusted to .it. (People ex rel. Wakeley v. McIntyre, 154 N. Y. 628; Schenck v. Mayor, 67 id. 44; City of Buffalo v. Bettinger, 76 id. 393; People ex rel. Williams v. County Court, 105 App. Div. 1; Woods v. Supervisors, etc., 136 N. Y. 403.)
In the case last cited this enunciation of the rule is made at page 410: “Boards of supervisors represent the county in its corporate capacity, and have power to bind it to the extent conferred by statute, and when any act of such board is challenged as beyond its power, or not binding upon the county, resort must be had to the specific powers enumerated in the statute which such board may exercise. But in such cases the body is riot confined to the exercise of the precise act contained in the grant of power, but from the nature of the case as well as upon' settled principles it possesses and may exercise such incidental powers, not expressly enumerated or mentioned in the statute, but which are fairly and reasonably necessary and proper in order to give effect to or carry out the powers expressly conferred.”
It is the claim of the respondent that section 265 of the Real Property Law (Laws of 1896, chap. 547) is applicable. The 1st sentence of that section is as follows:. “ Each recording, officer must, provide, at the expense of his county, proper books for making gen
My conclusion is, therefore, that the board of supervisors did possess the authority, intrusted as they are with the preservation of ..the county property, to make this contract with the defendant.
Hor do I think the fact that he was county clerk, receiving fees for the services rendered in that office, brings him within the prohibition' of the Constitution (Art. .3, § 28) that, lie is to receive no additional compensation for the duties officially imposed upon him. As already stated, the'duty of.making these indexes, to. my mind, was ■ not one of his official duties-.' It was work outside, and inasmuch as he was the custodian of the books the contract was properly made with him. I appreciate that a contract of this kind should be viewed with care, and yet, when services rendered in pursuance of
It will be observed that section-26, already quoted, provides that the board of supervisors shall not pay for such work until it has been examined and approved by the county judge or a justice of the Supreme Court of the judicial district and unless a certificate is given before the work has been performed. It appears by the affidavit of Judge Coyne, who was county judge of Livingston-county, and by other affidavits in the record, that Judge Coyne did make such examination and did recommend that the new indexes be made. He farther says in his affidavit: “ I informed such committee prior to their report to said Board, on or about the 11th day of December, 1899, and after such examination that such work was necessary for the security and safety of the public records and should be done, and while I have no recollection of filing a certificate in accordance with such conclusion such necessity in my judgment as such County Judge actually existed and so far as it was within my power and. province to control the performance of such work I directed the same to be done.”
After the work was completed, Judge Hash of the Supreme Court, and long a resident of the county, certified that he had examined “ Book A and B grantors,” which was one of the books of indexes made by the appellant for the county, and that he had taken . the statement of the deputy clerk as to the other nineteen books of indexes; and, by the way, there is no claim that they were not properly indexed and uniform in their general -features to the one which Judge Hash examined, and Judge Hash added“The said work of indexing is hereby approved as to the manner and form of the execution thereof. I further certify, that the charge at the price per word for such work, in accordance with the terms of the said contract, as the same may be computed, appears to be a reasonable charge therefor.”
I think this is a fair compliance with the statute, especially as there is no criticism upon the character of the work done or the number of names indexed.
I think, also, that even if there was a question as to the authority of the board of supervisor’s to enter into .this contract, the compromise made by it with the defendant as evidenced by its resolution
The authorities-seem to make, a distinction in viewing compromises made. or. ratifications of contracts between those-which are absolutely prohibitive by the board and those in which.there.is á debatable question whether the act done was within the inherent powers of the body doing it. (Village of Fort Edward v. Fish, 156 N. Y. 363, 378.)
In the cases- cited by- the respondent’s counsel, and also by the ■ learned court, below in his opinion, they, in the main, involve acts of. bodies of exceedingly limited-functions or .those> plainly outside the pale of authority, either specific or implied, and consequently áre not- applicable to this case. • " • '
. The complaint alleges that the compensation- claimed is. exorbitant. There is no finding .to that effect; and no foundation in the evidence fbr the charge. If the value of the sérvices rendered Were in issue, or if there; was evidence tending to show that the board entered into this agreement with another official of tile county improvidently,, then the claim would call for close scrutiny. So far as. we" can -gather from the record the claim bn its merits is just, and -the work was beneficial to the county and.has been accepted-by iff
The judgment and order should -be reversed.
All concurred-, except McLennan, P. j., and Williams, J., who dissented upon the opinion, of Benton, J., delivered at Special Term.
■ Judgment reversed and new trial ordered, with, costs to appellants to abide, event on-questions of law and fact.