
    James W. Wadsworth, Respondent, v. The Board of Supervisors of Livingston County and Others, Defendants, Impleaded with Henry B. Curtis, Appellant.
    Fourth Department,
    July 12, 1910.
    County—power of supervisors — agreement with county clerk to make new indexes of records for additional compensation — when such contract binding — constitutional law — additional compensation of public officers — approval of indexes by judgé — compromise, when binding upon county.
    Although the powers of a hoard of supervisors are limited to those granted by the Legislature, it possesses nevertheless inherent authority- to perform acts necessary to preserve or benefit the corporate property of the county intrusted to it.
    As by virtue of the County Law the board of' supervisors is intrusted with the ' care and custody of the corporate -property of the county including county records, and as, the Real Property Law requires fécording officers to make proper indexes, etc., at the expense of the county, the board of supervisors has ■ power to contract with the county clerk to make án entirely new set of indexes of the county records for a compensation in'additioa'tq.his usual fees where the old indexes have become dilapidated and inadequate.'
    This; because while a county’clerk is required to preserve the records and indexes so that they may be useful to those examining them in consideration of his . regular compensation, he is not required to make entirely new indexes as part of his regular work. Such indexes are not needed more frequently than once a century and the work, is too extensive-.an undertaking to be required of the • clerk without compensation. ...
    
      ‘Such additional payment to thé county clerk for making an entirely new index is not within the' clause of the Constitution forbidding additional compensation for the performance of official duties.
    There is a sufficient compliance with section 26 of the County Law which provides that the board of supervisors shall not pay for such work until.it has been examined and approved by a judge of the County Court or justice of the Supreme Court, where-a county judge after making an examination recommended that the new indexes be made, and a judge of the Supreme Court having examined a portion of the new indexes, and having accepted the statement of another person as to the quality of the other books, certified that the indexes were approved as to manner and form, and that the charge therefor was reasonable. Especially is this true where no 'criticism is made as to the character'of the work or as to the. number of names indexed.
    Moreover, where the right of .the county clerk to compensation for making such indexes was contested and payment was refused, ah agreement to pay a certain sum in compromise of pending litigation is founded upon a new consideration and enforcible. . ,
    McLennan, P. J., and Williams, J., dissented.
    . Appeal by the defendant, Henry' B. Curtis, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 13tli day of April, 1909, upon the decision of the court rendered after' a trial at the Livingston Special-Term, and also (as stated in the notice of -appeal) from an order entered in said clerk’s office on' the1 same day directing the. entry of' said judgment.
    The judgment restrains thé defendant, the board of supervisors of said county, from paying the amount of an .order for $5,470.94-upon the defendant Walker, as treasurer of said county, and in favor . of said defendant Curtis. •
    
      Walter S. Hubbell and H. V. Pratt, for the appellant.
    
      Charles P. Newton, for the respondent.
   Spring, J.:

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 ' of time between.the year 1821, inclusive of that- year, and the 1st day of January, 1900; said index to include indices of every, name, whether of grantors or grantees, or of the wives or husbands of said grantors or grantees, in said deeds contained ; to include the towns in which all property forming the subject matter of -said deeds is situated ; and to include the certain years in which the. aforesaid deeds were recorded together with references to' the respective book of deeds and page therein their records containing.’? ,'

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..

Upon the application of the appellant a writ of certiorari was. granted on the 12th day of March, 1906, issued to the said board and a return was filed by it. At the session of the board on December 12, 1906, elaborate resolutions were passed by it, reciting the contract which had been made by the appellant; that the claim was a meritorious one;" that the contract had been performed; that the work had been examined and approved by a justice of- the Supreme Court “as to its manner and form of execution,” who had “certified the amount charged as reasonable therefor,” and that “ eminent attorneys having expressed an opinion contrary to that of Mr. Bissell as to the legal liability of the county to pay said claim, and it is believed that the interest of the county will be promoted by a termination of the present lawsuit,” and thereupon a compromise was recommended at the sum of $5,470.94 and the claim of the appellant was duly audited at that sum and direction given that an order on the- county treasurer be issued payable to said defendant and signed by the chairman and clerk of the board, and that the certiorari proceeding be suspended until the payment of the claim, upon which event it he discontinued without costs. It appears that $650 of the claim of the defendant was earned after his term of office expired.

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 Curtis, as well as the board of - supervisors; did not,enter into this agreement in perfect good faith. There is nothing to indicate that ' there is any graft or that any improper method was used to procure the contract. The- board of supervisors apparently was cdri- • fronted with .the necessity or, at least, the propriety of having these index books rewritten-and new books, provided. ’

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 certified whenever by reason of age or exposure, or any casualty, the same shall be necessary. Any officers making such transcripts or copies shall be paid such sum therefor as may be just, but such payment shall not exceed a sum to be certified by the county judge, or a justice of the Supreme Court of the judicial district, as reasonable therefor. Such board of supervisors shall not accept and pay for any such services Until the work-shall be examined and" approved as to its manner and form of execution by such judge or justice; nor shall any board of supervisors order any such work to be done until such judge or justice, after an examination, shall certify that such work is necessary for the security and safety, of the public records.”

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 general indexes of instruments recorded in his office, and must form indexes therein, so as to afford correct and easy reference to the books of record in his office.” The section then proceeds to define these boobs and the manner in which the indexes shall be " made. I do not believe it was ever contemplated by. this, section that a clerk, either one paid by salary or who is receiving fees, should, be required to make entirely new indexes of the records of the county as a part of his regular work. Ho fee is provided for work of that kind. He is the official in charge of the books of record in the office, and slight changes essential to preserve these books and their indices so that they may be relatively useful and •' available to the employees in the office and to others examining ' them may fairly be.within the range of his. official duties. A substantial rewriting of all the index books, which probably will not be ■ needed more frequently than once in a century, is too ex-tensive, an undertaking to be expected of him without compensation. The fact that no fee is prescribed for a job of this kind indicates that it was not su pposed to "be performed , by him unless ordered by the board of supervisors, and then as an extra service to which he would be entitled to just remuneration. Livingston county is a rural county, with no city and not a large population, and the recompense of. the clerk by the fees accruing to him must be small- in amount. The evidence shows without dispute that the amount of his pay for the performance of his' contract with the board exceeded $14,500, denoting that the work was too extensive for an official of small compensation to render without any pay.

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 have been fairly and honestly fulfilled they should be adequately paid for.

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 at its session in December, 1906, reciting all the facts, assigning its reasons .therefor,. was . an adjustment of the pending controversy founded on a new consideration and is enforcible. If there was no doubt that the. board of supervisors was absolutely forbidden from making a contract of this kind' probably the subsequent ratification of it and the making of the compromise agreement would not be effective to enable the defendant to receive his pay.. It. must be observed, however, that there • was a sharp disagreement among . eminent láwyers as to the .power of the board to enter'into this contract. It seems.to me the weight 'of authority is in favor of the' power of the board. In view of this situation and with the litigation pending, together With the fact tint- the work had been fully performed, I think the compromise agreement is effective.'

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.  