
    The People of the State of New York, Appellant, v. Patrick Keenan, as Chamberlain of the City of New York, Respondent.
    First Department,
    May 21, 1909.
    Public officers — payment to State Treasurer of moneys unclaimed for twenty years — reference to ascertain whether claims were made — contempt — when no disobedience to mandamus — alias writ.
    Where a city chamberlain has been ordered by mandamus to pay over to the . State Treasurer all moneys deposited in his hands which have remained unclaimed for over twenty years, pursuant to section 9 of chapter 651 of the Laws of 1892, the court has power to appoint a referee to take testimony and report as to whether certain moneys on deposit were unclaimed during the period.
    Where such writ only ordered the chamberlain to pay over moneys ,f unclaimed ” for the period, he is not guilty of contempt in failing to pay over portions of the moneys held by him when he is not certain that no claims thereon have been made within the period.
    Although the appellate court has power to direct the issuance of an alias writ of mandamus to accomplish the purposes intended by the original writ, it will not issue an alias writ containing additional requirements in order to hold the respondent guilty of contempt for not doing acts not ordered by the original writ.
    
      It seems, that section 9 of chapter 651 of the Laws of 1892, requiring unclaimed moneys in the hands of the chamberlain of the city of New York and certain county treasurers to be paid over to the State Treasurer, applies only to moneys unclaimed for the period of twenty years and does not require them to turn over moneys upon which claims have been made during the period;
    Appeal by the plaintiff, The People of the State of Hew York, from part of an order of the Supreme Court, made at the Hew York Special Term and entered in the office, of the clerk of the county of New York on the 30th day of September, 1908, appointing .a referee to take testimony, and denying the plaintiffs motion to punish the defendant as for a contempt.
    
      James O'Malley, for the appellant.
    
      Theodore Connoly, for the respondent.
   McLaughlin, J.:

Upon the application of the Attorney-General of the State, the chamberlain of the city of New York was directed, by peremptory writ of mandamus, to pay to the Treasurer of the State of N ew York, pursuant to the provisions.of. section 9 of chapter 651 of the Laws of 1892, “ any and all sums of money heretofore .paid into court in the counties of New York, Kings, Queens and Richmond now on deposit and which have remained unclaimed - in the hands of the said chamberlain and of the county treasurers of the counties of Kings, Queens and Richmond for the period of twenty years or more, together with all the accumulations of interest thereon, after deducting his legal fees.” An appeal was taken from the order directing that the writ issue, but the same was affirmed. (People v. Keenan, 110 App. Div. 537.) An appeal was then taken to. the Court of Appeals with the same result. (185 N. Y. 600.) After the order had been affirmed by the Court of Appeals and its judgment made the judgment.of the Supreme Court, the chamberlain filed a return showing that he had paid to the Treasurer of the State of New York certain of the moneys described in the writ, ¡and that he still held as such chamberlain other moneys which had remained on deposit for more than twenty years, but he was unable to st.ate whether, they had during that time remained unclaimed. A few days later he applied for the appointment of a referee to take testimony and report to the court whether any of thei moneys referred to in the return and remaining on deposit in his office for a period of twenty years or more had during that time remained unclaimed. About the same time the Attorney-General made a motion to punish the chamberlain for Contempt in not paying such moneys to the State Treasurer. Both motions were heard together and resulted in one order. The motion for the appointment of a referee was granted, and the motion to punish for contempt denied. From this order the People appeal.

The chamberlain was directed to pay to the State Treasurer moneys which had remained unclaimed for a period of twenty years or more. He complied with the order of the court, so far as he could, by paying over all the money which he knew had been unclaimed for that length of time. He could not — and comply with the order — pay over the balance until it had first been ascertained that the same had remained unclaimed for twenty years or more. (Ross v. Butler, 57 Hun, 110; Rowley v. Feldman, 66 App. Div. 463.) The only way this could be ascertained was by taking proof upon the subject. The court, of course, could have heard such proof-in the first instance, but it was not obliged to do so. It could direct a referee to take and report the same, and this it properly did. (Matter of Lawson, 109 App. Div. 195.)

Clearly, the chamberlain was not guilty of contempt. (Matter of Wegman's Sons, 40 App. Div. 632 ; Watertown Paper Co. v. Place, 51 id. 633 ; Saal v. South Brooklyn R. Co., 122 id. 364 ; Ketchum, v. Edwards, 153 N. Y. 534.) The writ only directed him to pay what had remained unclaimed ” for the period of twenty years or more. But it is suggested by the appellant that under the statute (Laws of 1892, chap. 651, § 9) the State is entitled to have all of the moneys paid into court which have remained in the hands of' the chamberlain or county treasurers for a period of twenty years or more, together with all. the accumulations of interest thereon, paid over to the Treasurer of the State, and this irrespective of whether such moneys have or have not been claimed, and that for the purpose of giving effect to the legislative intent as expressed in the statute, the word “ unclaimed ” as used in the writ should be disregarded, or that this court should issue an alias Writ to take its place, omitting such word. It is undoubtedly true that an appellate court may, in a proper case, direct that an alias writ issue and that the same be in such form- as to accomplish the purpose intended. (People ex rel. Johnson v. Supervisors of Delaware County, 9 Abb. Pr. [N. S.] 408; S. C. modfd., 45 N. Y. 196 ; People ex rel. Henry v. Nostrand, 46 id. 375.) But it never directs that such writ issue unless, upon conceded or admitted facts, the party applying for it is legally entitled thereto, and such is not this case. Here the court is asked to punish the chamberlain for a violation of its order, and whether or not he has violated the order depends, of course, upon what it directed him to do, and this must be determined from the mandate itself, without adding to or taking words from it. The chamberlain was ndt directed to pay to the State Treasurer any specific sum of money, but only such as had remained unclaimed for a period of twenty years or more. This he did, so far as he liad knowledge on the subject, and it was all the writ directed him to do.

It is also contended by the appellant’s counsel that the statute makes no distinction between moneys claimed and unclaimed.' The determination of this question is not necessarily involved in this appeal. If it were, I should have no hesitation in reaching the conclusion that the Legislature intended that it should apply only to moneys paid into court and which had remained unclaimed for a' period of twenty years or more. This intent, it seems to me, is fairly to be gathered from the purpose sought to be accomplished by the statute, as well as from- the words used in it.

The order appealed, from, therefore, is affirmed, with ten dollars costs and disbursements.

Ingraham, Laughlin, Clarke and Scott, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  