In re Tyler

Section 16 of article 6 of the Constitution of the State of New York provides: “The legislature may, on application of the board of supervisors, provide for the election of local officers not to exceed two in any county, to discharge the duties of county judge and of surrogate in cases of their inability or of a vacancy, and to exercise such other powers in special cases as may be provided by law.”

In pursuance of this provision of the Constitution, the legislature, In 1858, passed an act declaring that there should be elected in Tompkins county a local officer “to discharge the duties of county *569judge and surrogate of said county in cases of vacancy or the absence ■or other inability of such officer.” This act, after stating that such ■officer should be a counselor-at-law of the Supreme Court, and that he should possess certain powers and perform 'certain duties, provided that he should be designated as special county judge, and “ shall receive for the services to be rendered by him, under the provisions of this act, such compensation as shall be allowed to him by the board of supervisors in said county.” (Laws 1858, chap. 279.)

It is contended by the appellant that the decedent was authorized by this statute to act as surrogate in the absence of the county judge, and hence that his right to so act ivas not dependent upon the provisions of section 2484 of the Code of Civil Procedure, nor restricted by the last paragraph of that section, which provides that before an officer is entitled to act, as prescribed in that section, proof of his authority must be made as prescribed in section 2487.

Section 2484 provides: “ Where, in any county, except New York or Kings, the office of surrogate is vacant; or the surrogate is disabled, by reason of sickness, absence or lunacy; and a special provision is not made bylaw — fen* the discharge of the duties of his office i/n that contingency; the duties of his office must be discharged until the vacancy is filled or the disability ceases, as follows: 1. By the special surrogate ; 2 * * * By the special county judge; 3. * * * By the county judge; 4. * * * By the district attorney.”

It will be observed that section 2484 provides who shall act in ■case of a vacancy, absence or other disability only where there is no •special provision of law for the discharge of the duties of that •office in such contingency. In Tompkins county a local officer was •elected to discharge the duties of surrogate in the absence of that •officer. Hence wo are disposed to adopt the appellant’s theory that .the provisions of section 2484 are not applicable in this case.

Assuming, then, that the statute of 1858 conferred upon the ■decedent the authority to act as such surrogate, independent of section 2484, the question arises whether section 2493 has any application .to this case. That section provides that an officer who acts as surrogate as prescribed in the last nine sections must be paid for the time he so acts a compensation equal pro rata to the salary of *570the surrogate or county judge. In this case the decedent acted as-surrogate, not as prescribed by the sections of the Gode relating to-that subject, but independent of those sections, and under the provisions of the statute of 1858, which declared that he should receive for his services such compensation as the board of supervisors should allow. Therefore, we are of the- opinion that section 2493 of the Code of Civil Procedure is not applicable to this case, and that the decedent was entitled only to such compensation as was allowed by ■the board of supervisors.

If, however, our conclusion that the provisions of the Code are not applicable in this case is wrong, still, as those provisions were-not complied with, it is difficult to discover upon what theory the-appellant is entitled to the relief sought. No proof of the authority of the decedent to act as such surrogate was given, nor order made as-required by sections 2487 and 2488 of the Code. We think the making-of such proof and the obtaining of such an order was a condition precedent to the testator’s right to act as such surrogate, if acting under the provisions of the Code, and that at least as to him his-acts were so far unauthorized that lie was not entitled to the-compensation provided for by section 2493.

But it is said that the act of 1889 (Laws 1889, cliap. 221), which-was a statute to legalize the official acts of the decedent performed' between January 1, 1886, and January 1, 1889, by reason of any failure to make proof as to his authority, has, by relation, supplied the required authority for the acts of the decedent as such surrogate. By this statute his acts were legalized as to third persons, so far as-the legislature could do so, but we think it was not its .purpose or intent to change the status of the decedent, so far as the question of compensation was concerned, nor do we think that such was the effect of the statute.

There is also another reason why this order should be affirmed. Section 2493 provides that the officer or person therein mentioned “ must be paid,for the time during which he so acts, a compensation equal pro rata to the salary of the surrogate; or * * * county judge.” We think a fair construction of this provision requires us to hold that even if entitled to compensation under the Code the. decedent was entitled only td^such compensation while acting as such surrogate, and that he was not entitled to compensation when not so *571acting. The papers read on the motion in this case show that the testator acted during only a portion of the time for which he seeks compensation. Therefore, in any event, his claim was for too much and properly disallowed. (People ex rel. Byrnes v. Green, 64 Barb., 162; People ex rel. Ketteltas v. Cady, 2 Hun, 224.)

These considerations lead to the conclusion that the order should be affirmed.

Order affirmed, with ten dollars costs and disbursements.