
    Daniel H. Deyoe, App’lt, v. William Ewen et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 8, 1893.)
    
    Sheriffs—Bond given by deputy to divide fees with sheriff.
    Defendant Bwen, as deputy sheriff, gave to the sheriff a bond providing for a division of fees received by Mm, both civil and criminal, wMch also provided that all business that should come into liis hands that could be done by virtue of the office < f deputy sheriff should be done in that capacity and not in any other. In an action to recover thereon certain fees received for arrests on criminal process, Held, that such fees were received by defendant in payment for services rendered as a peace officer and were not sheriff’s fees as such; and that as the agreement provided for a division of fees and emoluments' not due or belonging to the sheriff as such, it was contrary to public policy, and the bond was, therefore, void.
    Appeal from judgment dismissing the complaint.
    Action upon a bond given by defendant Bwen, a deputy sheriff, to plaintiff as sheriff, providing for a division of fees received by him.
    The following is the opinion of the court below :
    
      Russell, J. The plaintiff, in these actions, was sheriff of Saratoga county and sues the defendants for one-third of the fees received by the defendants, Woodworth and Ewen, during the plaintiff’s term of office, the last named defendants being two of his deputies. They- gave bonds to the sheriff providing for a division of the fees received by them, both civil and criminal, on the basis of one-third to the plaintiff and two-thirds to themselves, and the bond provided also that all business that should come into their hands that could be done by virtue of the office of deputy sheriff should be done in that capacity and not in any other. This is meant to reach the claim which Woodworth and Ewen might make that they executed warrants as constables and not as deputy sheriffs.
    Woodworth and Ewen paid in full the amounts going to the sheriff for the civil business done by them as deputies, but the defendants declined to pay the one-third of the amount received by the officers in the execution of criminal process.
    The question in this case is whether a sheriff can take a bond from a deputy who may be a constable of the county, or may not, providing for a division of the fees by that person in the execution of criminal process, and have such obligation enforced by the courts.
    I think not. The general rule is that a public officer shall not be able to take for his private emolument any obligation by color of his office. To this rule there are exceptions. He is allowed by statute to take indemnity bonds in certain instances. He is also allowed to execute civil process by means of deputies, for the increased facility of business, as it is impossible for him to execute all of the duties of his office single-handed. He may not sell such deputations, but he may provide for a reasonable division of the fees to be received. The reason of these exceptions is plain; but they do not go beyond the purpose and the necessity in view. The distinction between the execution of civil and criminal process is widely marked and the penetration of the law does not confound the two. The deputy should in some manner divide the fees in the execution of civil process because he acts as the sheriff pro hac vice. He does not act as sheriff in the execution of criminal process. He acts as peace-officer of the county. Code Criminal Procedure, § 154, taking effect September 1,1881.
    For improper execution of civil process the sheriff is liable for acts of his’ deputy. For improper execution of criminal process the sheriff is not responsible for the acts of his deputy.
    If a deputy should kill a man in making a criminal arrest, an action would not lie against the sheriff. If a deputy under a criminal warrant should destroy property, the sheriff would not be responsible. In the execution of civil process the sheriff may direct the deputy what to do, and the deputy must obey his superior. In the execution of criminal processes the sheriff may not control the deputy beyond that power which is given him in regard to all citizens of the county. The deputy acting as a peace officer is responsible to other authority than that of the sheriff himself.
    
      Under such a bond as was given in these matters, the sheriff could easily control the fees of the constables of the county more likely to do the largest business as constables by making them deputy sheriffs, so that his appointment of a person as a deputy would extend in its force and operation to a control of the perquisites of many of the constables of the county.
    Ho authority directly in point has been cited to me and, therefore, this case must be decided upon principle and from inferences drawn from somewhat analogous cases. Becker v. Ten Eyck, 6 Paige, 68; Tappan v. Brown, 9 Wend., 175 ; Farrar v. Barton, 5 Mass., 395 ; Mott v. Robens, 1 Hill, 21; Bliss v. Lawrence, 58 N. Y., 442 ; Thurston v. Fairman, 9 Hun, 584; 3 Birdseye Statutes, 2799, § 59.
    There is nothing in this case to show that these bonds were not taken in perfect good faith, but the considerations of public policy, in my judgment, render them ineffective, at least so far as the perquisites in criminal cases are claimed.
    Judgment is ordered for the defendants.
    
      Gayley, Baucus & Fleming (Edgar T. Brackett, of counsel), for app’lt; T. F. Hamilton, for resp’ts.
   Herrick, J.

The plaintiff in this action is the sheriff of Sara-toga county, the defendant Bwen is the deputy appointed by him, and the other defendants are sureties upon Ewen’s bond.

The bond given provides for a division of the fees received and earned by the defendant Bwen, both civil and criminal, one-third to the plaintiff and two-thirds to the defendant Bwen, except for, per diem attendance upon court, and also his fee for summoning jurors, all of which is to be received by the plaintiff.

It appears that the defendant Bwen earned fees in criminal cases aggregating the sum of $777.78, which sum was paid to him before the commencement of this action.

He failed to pay any portion of it to the plaintiff, who thereupon commenced an action against the defendants upon said bond for one-third of the fees received by said Bwen.

Upon the trial a judgment of nonsuit against the plaintiff was rendered, from which judgment an appeal was taken to this court.

A determination of who the fees belong to in the first instance determines the validity of the bond upon which the action is brought.

Where the sheriff is entitled to fees or emoluments an agreement for a division of them is valid.

The reason why the principal may take a stipulation for a part of his fees or profits is because the whole belongs to him. Mott v. Robbins, 1 Hill, 21; Becker v. Ten Eyck, 6 Paige, 68.

But where the fees belong to the deputy, a division of them with his principal is regarded as a purchase of the office or appointment, and an agreement for such division is therefore invalid. Tappan v. Brown, 9 Wend., 179; Becker v. Ten Eyck, 6 Paige, 68-75.

The only finding of the court of fees earned and received by the defendant Ewen, but undivided with the plaintiff, is of fees in criminal proceedings, a very large proportion of which appears from the evidence to have been for the arrest of persons charged with crime.

Such services are not. performed necessarily by the sheriff or deputy sheriff as such, they may be performed by any peace officer. Section 154 of the Code of Grim. Proc. defines a peace officer to be the sheriff, under sheriff, or deputy, or a constable, marshal, police constable or policeman of a city, town or village.

While it is true that in this particular case Ewen was a peace officer because, and only because he was a deputy sheriff, yet the fees received by him in the criminal proceedings were received by him in payment of duties discharged as a peace officer, they were not sheriff’s fees as such, but could have been earned by a marshal, constable or a policeman ; therefore in making the agreement for a division of them the plaintiff was not “ only reserving a part of his own,-and giving away the rest to another,” but, was taking to himself what in the first instance was due to another.

The bond itself recognizes that Ewen might perform services and receive fees that could be performed and received by another person than a sheriff or deputy sheriff, and provides that anything that is done by Ewen that can be done by a deputy sheriff shall be done by him in that capacity, and that he should divide the fees therefor.

It appears to me therefore, that this agreement provides for the division of fees and emoluments not due or belonging to the sheriff as such, and is therefore contrary to public policy, and that the bond and agreement therefor is void.

The judgment should he affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.  