
    Frederick L. Ellis and Herman Goltermann, Respondents, v. Charles Jacob, Appellant.
    
      Moneys had and received—recovery by the complainant from, the government agent of the overplus of moneys advanced to and not expended by him in extradition proceedings—Penal Code, § 51, applies only to interstate extradition.
    
    A party who advances to a duly accredited agent of the United States government, acting under the authority of a commission granted by the President in the execution of a writ of extradition, a sum of money to defray his actual expenses'— the agent promising to return the overplus — may recover of the agent the unexpended balance; as to such balance, the doctrine of voluntary payment can have no application.,
    Section 51 of the Penal Code, making it a misdemeanor for any officer to ask or receive any compensation for “service rendered or expense incurred in procuring from the Governor of the State a demand upon the executive authority of a State or Territory of the United States, or of a foreign government, for the surrender of a fugitive from justice,” has reference only to interstate extradition, and does not apply to extradition from foreign countries, as the Governor can have no power under an international treaty to make such a demand upon a foreign government.
    Appeal by the defendant, Charles Jacob, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of-He-w York on the Litii . ■ day of December, 189'6, upon the decision of the court .rendered 'after a-trial at -the New York Special Term directing an accounting.
    
      Abraham Levy, for the appellant.
    
      Walter K. Larton, for the respondents.
   Parker, J.:

Whether a party .who advances, to- a duly accredited agent of the United States government acting under .the authority of -a com-, mission granted by the President in the execution of a writ of . extradition, a sum of money for the purpose of defraying his expenses — the agent to return the overplus-.— can recover the unexpended balance, is .the question presented by. this appeal.

' Ellis & Goltermann found in .the. early-summer of-1895 that their bookkeeper was both, a forger and defaulter,, and had- fled to. England. At their instigation such' proceedings were thereafter' had that a'writ of extradition was obtained and an indictment found, and' u-pon a cablegram, to the English police the bookkeeper was arrested and held for extradition. The defendant, Charles Jacob, became the duly accredited agent of the United States for that purpose, hy the authority of the commission- granted by the President. The plaintiffs promised to pay the expenses which should be necessarily incurred by him ; and. when the question of the amount to he advanced came-to be considered, the defendant proposed that plaintiffs' should advance him $575, and -promised to account, for and turn over whatever sum should remain after defraying the neCessaiy 'expense's of .-himself and the prisoner; On his return, he refused to ' render any account to the plaintiffs' or to pay over 'to them what balance,,if any,.remained';:-and this -suit'was- brought, resulting iban interlocutory judgment, decreeing that the defendant is liable to . the plaintiffs for whatever sum may remain in his hands, over and above his necessary expenses, and appointing a referee to take and . state the account. The appellant urges on this appeal:

First, that the plaintiffs are not entitled to recover, because, by article 10 of the treaty, concluded August 9, 1842, between- the United States and the Kingdom of Great Britain, the expense of apprehension and delivery must he borne by the party making the requisition; and that the word “ party,” as used in the treaty, refers to the government making the requisition and receiving the fugitive. (People ex rel. Gardenier v. Supervisors of Columbia County, 134 N. Y. 1.) The contention then is that, it being the duty of the government to incur the necessary charge and expense in the apprehension of the plaintiffs’ bookkeeper, the payment of moneys to the defendant, who was the agent of the government, was a voluntary payment, and, therefore, may not be recovered back. In this contention the defendant apparently loses sight of the fact that the plaintiffs are not seeking to recover back the sums of money which were actually expended by the defendant in thé extradition of the bookkeeper. They concede that the defendant is entitled to every dollar that was legitimately expended by him for that purpose. What they seek to recover is a sum which they advanced to him to be used in case of necessity, and which he agreed to return in the event that there was no occasion for its use; and as to such sum there is no opportunity for the application of the doctrine of voluntary payment.

The further point is made that the money ivas paid to the defendant in violation of law and, therefore, the plaintiffs are precluded from a recovery. This claim is sought to be founded upon section 51 of the Penal Code, which declares that “ an officer of this State who asks or receives any fee or compensation of any kind for any service rendered or expense incurred in procuring from the Governor of this State a demand upon the executive authority of a State or territory of the United States, or of a foreign government, for the surrender of a fugitive from justice * * * is guilty of a misdemeanor.” The answer to it is furnished in People ex rel. Ga/rdenier v. Supervisors of Columbia County (supra), where it is held that this section has reference only to interstate extradition, and does not apply to extradition from foreign countries, as the Governor can have no power under an international treaty to make demand upon a foreign government for the surrender of such fugitive.

The judgment should be affirmed, with costs.

O’Brien, Rumsey, Williams and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  