
    The People of the State of New York ex rel. William H. Gray, Respondent, v. The Board of Supervisors of Livingston County, Appellant.
    
      Audit of a sheriff’s bill—items for attendance at County Courts held at county judge’s chambers —for board, of prisoners —for receiving and discha/i'ging prisoners, taking them, to court to plead and keeping them in custody.
    
    The county judge of Livingston county designated a court to be held at his chambers without a jury each Saturday during the year 1902, except during the month of August. The county judge was absent from the county on thirty-two Saturdays during the year and no court was held on those days. The sheriff did not adjourn court on those days nor did he perform any other-service in connection therewith. It did not appear that there was any statutory provision requiring the sheriff to attend the Saturday terms.
    In his annual account presented to the board of supervisors the sheriff made a charge for forty-two days’ attendance at these Saturday terms at three dollars per day. The board of supervisors disallowed his claim, for attendance at seventeen'Of the Saturday terms and allowed the remainder of the charge.
    
      Held, that the action of the board of supervisors was as favorable to the sheriff as he was entitled to expect.
    In the sheriff’s account was an item of §803.19 for fees and board of prisoners. It appeared that the prisoners in question were arrested in the' village of Geneseo for petty offenses triable exclusively by Courts of Special Sessions and were taken to the county jail by the local police and kept there until brought before the court and tried. The item was¡ made up of charges at the rate of sixty cents per day for board, seventy-five cents for receiving and discharging, one dollar and seventy-five cents for'taking to court to plead, and one dollar for keeping in custody, each prisoner.
    The custody for which the charge of one dollar was made was after the prisoner had been taken from jail by the police and was brought before the justice. Held, that the charge for taking the prisoners to court to plead and the charge for keeping them in custody should be disallowed, as, under the charter of the . village of Geneseo, these duties were imposed upon the police of the village; That the charge for the board of prisoners and for receiving and discharging them should be allowed, not necessarily at the amounts claimed by the sheriff, but at such amounts as the facts warranted.
    Appeal by the defendant, The Board of Supervisors of Livingston County, from an order of the Supreme Court, made at the Livingston Special Term and entered in the office of the clerk of the county of Livingston on the 10th day of April, 1903, directing the issuance of a peremptory writ of mandamus.
    
      
      Charles J. Bissell and Lockwood R. Doty, for the appellant.
    
      Frank K. Cook, for the respondent.
   Williams, J.:

The order should be modified as hereinafter suggested, and as modified affirmed, without costs in this court to either party.

The relator during the year 1902 was sheriff and jailer of the county of Livingston. In November, 1902, he presented to the board of supervisors his bill for services as sheriff and as keeper of the common jail of the county. The board struck out some items and audited the balance of the bill. Two alternative writs of mandamus were procured and served requiring the board to give specific information with reference to the items of the account disallowed, and such information was given by the returns of the board to such writs. Upon such returns the relator moved for a peremptory writ requiring the board to audit and allow:

1. Item deducted from total charge for meals of prisoners.. $25 00

2. Item deducted for attending court.................. 51 00

3. Item for fees and board of prisoners................ $803.19

And upon this motion the order appealed from was made. The order disallowed the twenty-five-dollar item, and as no appeal is taken by the relator we need not consider this item. The next item of fifty-one dollars for attending court was deducted for seventeen days at three dollars per day.

The county judge designated a court to be held at his chambers each Saturday during the year 1902, except during August, without a jury, and the relator charged in his account for forty-two days’ attendance at these courts at three dollars per day. The county judge was absent from the county on thirty-two Saturdays during the year and no court was held on those days. No adjournment of any of these courts was made by the relator and he performed no function as sheriff with reference thereto. Of these forty-two days’ attendance by the relator charged in this account the board disallowed seventeen, leaving the balance to be paid by the county. It does not appear that there was any statutory provision requiring the sheriff to attend these Saturday terms. He did not attend for the purpose -of exercising any function of his office and he did nothing. Presumably he knew the county judge was away and no court would be held, and his office was in the court house. It is difficult to see why he should be paid when he rendered no service to the county. The board went quite as far as they were justified in going when they allowed him for the remaining Saturdays’ attendance charged in his account. The order so far as it related to this item was erroneous.

The only other item is eight hundred and three dollars and nineteen cents for fees and board of prisoners. Persons were arrested in the village of Geneseo for petty offenses triable exclusively by Courts of Special Sessions, and were taken to the county jail by the local police and kept there until they were brought before the court and their cases were disposed of. The item is made up of charges in this class of cases, board at sixty cents per day; seventy-five cents each for receiving and discharging the persons ; one dollar and seventy-five cents each for taking them to court to plead, and one dollar each for keeping them in custody. There seems to be no doubt but that the last two items were improper and should be disallowed.It is not very clear from the record what the custody was for which the charge of one dollar per day was - made. "We assume, however, that the custody was of prisoners after they were taken from jail by the police and were brought before the justice. This was a charge the constable or policeman might make under section 8 of chapter 692 of the Laws of 1866 (as amd. by Laws of 1877, chap. 89); and by the Revised Statutes (2 R. S. 752, § 11) if the sheriff performed this duty he would be entitled to the same fees. We find no other provision for fees for custody of the prisoners one dollar per day. The charter of the village of Geneseo (Laws of 1872, chap. 237, § 61) makes it the duty of the local police who takes the person to jail to render this service, and the sheriff has no duty with reference thereto. The other two items seem to be chargeable, The County Law (Laws of 1892, chap. 686) provides, by section 90, that the county jail shall be used for the detention of persons charged with crime and committed for trial Or examination; by section 92, that the sheriff shall receive and safely keep in the county jail every person lawfully committed to his custody for safekeeping, examination or trial; and by section 93 (as amd. by Laws of 1896, chap. 826) that prisoners detained for trial shall be provided with a sufficient quantity of plain, wholesome food at the expense of the county; and by subdivisions 5 and 7 of section 230 that county charges cover compensation of sheriffs for commitment and discharge of prisoners and expenses necessarily incurred in the support of persons committed to the jails of the county. It is provided by section 61 of the charter of Geneseo, hereinbefore referred to, in effect, that a person of the class charged for infthis item of $803.19, upon being arrested by the local police, shall at once be taken before the police justice of the village; but if the police justice or another justice cannot be found, then the officer who makes the arrest may detain the prisoner in custody or commit him to the county jail, etc., for safekeeping until a justice be found, not exceeding twenty-four hours, when the officer shall bring the offender before the justice, etc. Reading all these provisions together, it must be held that the sheriff was compelled to receive and discharge this class of offenders and to provide them with board while detained in jail, and was entitled to charge the county fees for service and the expense of furnishing such board. It may be that the village ought to be required to pay these charges, so as to relieve the county therefrom. The statute will, however, have to be amended to accomplish such a result. The courts cannot afford the relief.

"We see no objection to the practice pursued in this case, of issuing a peremptory writ, or to the audit of this item and the allowance of such part of it as the board determines justified and required under the rules of law we have here laid down.

The board rejected the whole item, apparently on the ground that the village of Geneseo and not the county of Livingston was liable for the services actually rendered and expenses actually incurred. In this the board erred. It should now be compelled to act upon the bill, audit the same, allowing not necessarily what is charged for the two items we have held chargeable, but whatever the facts require the hoard to allow under the rules of law we have •established for this action.

Such was the practice adopted in People v. Supervisors of Delaware Co. (45 N. Y. 196); People ex rel. Thurston v. Town Auditors of Elmira (82 id. 81), and we think this the more simple and economical method of disposing of the controversy.

We conclude, therefore, that the order appealed from should be modified so as to disallow the writ as to the item of $51 for court attendance, and so as to direct the issue of the writ compelling the board to audit the item of $8.03.19, allowing such amount thereof as represents correctly the services of the sheriff for receiving and discharging prisoners at seventy-five cents each, and expense incurred for board of such prisoners, and as modified the order should be affirmed, without costs in this court to either party. Form of decision to be settled before Mr. justice Williams, on two days’ notice.

All concurred.

Order modified so as to disallow the writ as to. the item of $51 for court attendance and so as to direct the issuance of the writ compelling the board to audit the item of $803.-19, allowing such amount thereof as correctly represents the services of the sheriff for receivng and discharging prisoners at seventy-five cents each, and expense incurred for board of such prisoners and as modified affirmed, without costs of this appeal to either party. The form of the decision to be settled by and before Mr. Justice Williams upon two days’ notice.  