Coe v. Champlain Graphite Co.

Upon motion of the defendant the plaintiff was directed - either to pay into court the sum of $250, to be applied to the payment of costs, if any^ which might be awarded against him, or at his election give an undertaking in a like sum for the same purpose. The clerk of the court,, who-is also county clerk of the county óf New York, refused to file or enter such order unless he weré paid a fee of fifty . cents for so doing. Defendant then moved that he be directed to file such order without the payment, of any fee. The motion was granted and the clerk appeals.

He contends that inasmuch as he is county clerk of the county of New York he is entitled under the provisions of section 3306a of the Code of Civil Procedure to a fee. This section provides that “ The county clerk shall be entitled to receive *519for making the entries required of him by law of moneys deposited with the county treasurer the sum of fifty' cents in each case to be paid by the party to the action or proceeding and taxed as a disbursement therein.” Here, so far as appears, no money has in fact been paid into court and, if the undertaking be given, none will be paid. Besides, in filing and entering this order the appellant acted, not as county clerk, but as clerk of the Supreme Court. The order directing the payment into court or the giving of the undertaking is an order in the action and it is the duty of the clerk of the court to file and enter the same without any fee. If a fee were paid it would belong, not to the appellant, but to the city of New York—the county clerk receiving a salary in lieu of fees. The clerk being in doubt as to whether he were entitled to a fee, it was proper for him- to refuse to file and enter the order until the matter had been judicially determined.

It is also suggested by the appellant that the order should be reversed because the clerk can only be compelled to act by mandamus and not in a summary way by an order. This is true if the act which he is required to perform is that of a county clerk and not as clerk of the Supreme Court. (Matter of Murphy, 150 App. Div. 460.) The thing which he is here directed to do is the act of the clerk of the Supreme Court and not that of the county clerk.

It follows that the order appealed from is affirmed, but under the circumstances, without costs.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Order affirmed, without costs.