Eliza A. Saffen, as Administratrix, etc., of Henry C. Saffen, Late County Clerk of the County of Kings, Deceased, Respondent, v. The City of New York, Appellant

Eliza A. Saffen, as Administratrix, etc., of Henry C. Saffen, Late County Clerk of the County of Kings, Deceased, Respondent, v. The City of New York, Appellant. Allowance to the county cleric of Kings county for arranging papers in his office under chapter 739 of 1895—for necessary expenses—for compensation—purpose of the act. Chapter 739 of the Laws of 1895, entitled “An Act in relation to the clerk of the county of Kings,” provided in its 1st section for an examination, assortment and arrangement by such clerk of certain papers in his office with a view to facilitating access to them; in the 2d section thereof “for the pmrpose of defraying the expense necessary and incurred for such examination, assortment and arrangement,” it fixed the compensation'of the clerk at “the same fee for each paper, document and record so filed,” as that to which he was then legally entitled for filing like papers, and directed that for examining, assorting and arranging such papers “the said clerk shall he entitled to and allowed such compensation as is just and reasonable; all of which shall be a county charge.” Upon the trial of an action brought by the administratrix of a deceased county clerk of Kings county to recover “ such compensation as is just and reasonable,” alleged to be due to her deceased husband under the 2d section of said act, the proof showed that the deceased county clerk had, “for the expense necessary and incurred for such examination,” received §57,778.62; it further appeared that there were 153,195 papers examined, assorted and arranged in the county clerk’s office, as to which nothing was paid to the county clerk by way of filing1 fees. The referee found that a just and reasonable compensation for arranging these papers was fifty cents for each paper, and awarded the plaintiff judgment accordingly. Held, that the theory upon which the referee based his decision was erroneous; That in regard to the “ expenses ” the proper method of ascertaining what was due to the deceased county clerk was to prove the actual cost of the work; if the aggregate expenditure thus proven was more than §57,778.62, the plaintiff was entitled to recover the excess; if less, then the clerk had received all that was due to him for expenses; That in regard to the “ compensation ” no basis was afforded for a judgment until it was shown on behalf of the county clerk what services, if any, were personally performed by him; That the Legislature, by the act of 1895, intended (1) to have the papers in the county clerk’s office rearranged so as to be more readily accessible; (2) to have the county reimburse the clerk for the money which he should have to expend in that work; (3) to have the county also pay the clerk a reasonable compensation for the additional labor which the statute imposed upon him. Appeal by tbe defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of tbe clerk of the county of Kings on the 20th day of November, 1899, upon the report of a referee. R. Perey Ohittenden, for the appellant. Hugo Hirsh, for the respondent. ' [MAJORITY — Willard Bartlett, J".:] Willard Bartlett, J".: I think the decision in this case is based upon a misapprehension of the purpose and effect of the act of the Legislature under which the action is brought. That act is chapter 739 of the Laws of 1895. It is entitled, “ An Act in relation to the clerk of the county of Kings.” By the 1st section that officer is authorized “ to have the various papers, documents and records relating to suits, special proceedings and indices filed in his office examined and assorted and thereupon arranged in such a manner that the same can be easily found and be readily accessible to those desirous of examining or using the same.” The 2d section of the statute deals with two matters: First, the expenditures necessary to do the work, and, secondly, the county clerk’s compensation for the services to be performed by him. “ For the purpose of defraying the expense necessary and incurred for such examination, assortment and arrangement in the first section directed," the county clerk is declared to be authorized and entitled “to receive the same fee for each paper, document and record so filed in his office pursuant to this act, as he is now legally entitled to receive for filing like papers in his office." The 2d section further provides that for examining, assorting and arranging such papers, documents and records “ the said clerk shall be entitled to and allowed such compensation as is just and reasonable ; all of which shall be a county charge, and audited and paid as other such charges are allowed and paid.” Under that provision of the 2d section which relates to the expenditures necessarily incurred in the progress of the work, the late Henry C. Saffen, as county clerk of Kings county, received from the city of Brooklyn, as filing fees, the sum of $57,778,62. The present suit is brought by his administratrix to recover his just and reasonable compensation under the second provision of the 2d section. The plaintiff claimed as such compensation and has been awarded by the referee the sum of $76,597.50, with interest from December 29, 1897. The proof showed that there were 153,195 papers examined, assorted and arranged in the county clerk’s office as to which nothing was paid to the clerk by way of filing fees. The referee found that a just and reasonable compensation for examining, assorting and arranging these papers, documents and records was fifty cents apiece, and in this manner he fixed the amount for which he directed judgment. It seems to me quite clear that the Legislature in enacting chapter 739 of the Laws of 1895 intended three things: (1) To have the papers in the county clerk’s office rearranged so as to be more readily accessible; (2) to have the county reimburse the clerk for the money which he should have to expend in order to get the work done; and (3) to have the county also pay the clerk a reasonable compensation for the additional labor which the statute should impose upon him. The act was not designed to sanction a money making enterprise for the benefit of a public officer. The public interests demanded a rearrangement of the paper’s in the county clerk’s office, but they also required that nothing should be paid in order to effect the desired rearrangement except the actual cost of bring it about, and such additional sum as should fairly compensate the clerk for any increased burden of work which lie might personally have to sustain in order to carry out the mandate of the statute. The filing-fees provided a fund for defraying the expenses of the work as it went on, which the Legislature probably supposed would prove sufficient to cover the entire expenditure which might be required, but if those fees in the aggregate were insufficient for that purpose, the clerk, under a fair construction of the 2d section, would undoubtedly be entitled'to have any additional actual expenses made good to him, besides receiving his just and reasonable compensation. If this interpretation of the act of .1895 is correct, the method of' ascertaining the amount to which Mr. Saffen or his personal representative is entitled, is very simple, and quite different from that which was adopted on the trial of the present action. First, the plaintiff should have proved the actual cost of the work by showing how many persons were employed upon it or in relation to it, in whatever capacity, the nature and duration of their employment and the amount paid to each. If the aggregate expenditure thus proven was more than the $51,718.62 paid to Mr. Saffen by way of filing fees, the plaintiff was entitled to recover the excess. If it was less, it would appear that the clerk has received all that is due on account of expenses. In regard to the matter of compensation, proof should be given as to the timé and labor devoted by Mi;. Saffen to the performance of his duties under the statute, and the value of the additional services performed by him should be awarded to the plaintiff as the just and reasonable compensation provided for in the act. It was error to try the case upon the theory that the county clerk was entitled to personal compensation at so much a paper for services performed, not by himself, but by various persons employed by him to do the work and paid out of moneys received by him from the county. The elements of cost and compensation were not kept sufficiently distinct. All the work that other persons did was to be paid for by the county through the filing fees, if they proved sufficient, or by additional funds from the county treasury, if needed. .Beyond this, the compensation of the county clerk was to be only for what he should do himself by way of direction, supervision or otherwise. He was to be paid and his employees were to be paid the actual, fair and reasonable value of the work done by each. There is no evidence in this record to show what services, if any, were personally performed by Mr. Saffen in reference to the rearrangement of the papers in his office. There is, therefore, no sufficient basis for a judgment fixing the amount of the compensation to which he is entitled. All concurred, except Jenics, J., taking no part. Judgment reversed and new trial granted before a new referee.to be appointed at Special Term, costs to abide the event.