
    In the Matter of John E. Parsons to require James J. Slelvin, as Register, etc., to tax certain fees, etc.
    
      (New York Superior Court,
    
    
      Filed May 23, 1887.)
    
    1. Register—Must tax fees upon written demand—Code Civ. Pro., § 3387.
    It is provided by Code of Civil Procedure, section 3387, that each Register, who claims any fees by virtue of his office, must, upon the written demand of the person liable to pay the same, cause them to be taxed within the county, upon notice to the person making the demand, by a justice of the supreme court, a judge of a superior city court, or the county judge.
    
      2. Same—Laws 1884, chap 581—Fees of, under.
    By Laws of 1884. chapter 531, the register of the city and county of New York shall collect fees as follows For searching and certifying the title to and incumbrances upon real property, for each year for which the search is made, for each name and each kind of conveyance or lien, five cents Held, that the statute did not authorize a multiplication of the fee expressly given, by the number of lots or parcels conveyed by the same requisition.
    Appeal by register from order taxing his fees as register, etc.
    
      H, B. Classon, for resp’t; Wm. L. Turner, for app’t.
   Per Curiam.

Order appealed from affirmed, with costs, upon the opinion of Judge Freedman at special term.

Freedman, J.

—This is a proceeding to tax the fees of the register of the city and county of New York upon his return to a requisition of search in the records of his office put in by Mr. Parsons, as attorney for the estate of Walter Bowne, deceased. The right to have the register’s fees taxed by a justice of the supreme court or a judge of a superior city court is given by section 3287 of the Code of Civil Procedure.

The requisition required a search to be made for mortgages, conveyances and all other instruments in writing and incumbrances upon or affecting the title of sixteen distinct parcels of property situated in different portions of the city, and the search was to be made against certain names and for certain periods specified.

The register’s contention is that the fees amount to $917.05, and this result is arrived at by the following computation, viz.:

Search against 1 name for 91 years............ 91 years.

“ “ 1 name for 1 year.............. 1 year.

“ “ 29 names for 10 years each....... 290 years.

Total number of years.................. 382

382 years for mortgages at 5 cents each.......... $19 10

382 “ for conveyances at 5 cents each......... 19 10

382 for all other instruments at 5 cents each. 19 10

$57 30

Sixteen distinct parcels at $57.30 each............ $916 80

For certificate.................................. 25

Total.................................... $917 05

The duty to make the search was imposed upon the register of the city and county of New York by the provisions of chapter 531 of the Laws of 1884, and that statute is now the only law under which the register is entitled to collect any fees. By that statute the successor of the register then in office was made a salaried officer, and his compensation was fixed at and after the rate of $12,000 per year in lieu of fees. It was also enacted that all fees which may be collected by the register under the new system shall belong to and be for the benefit of the city and county of New York, and that they shall be collected by the register, and by him accounted for and paid over monthly into the treasury of the said city and county. The statute then prescribes certain fees to be thus collected for certain services to be performed by the register. The only provisions material to the present inquiry are contained in the fourth section, as follows :

“ For searching and certifying the title to and encumbrances upon real property for each year, for which the search is made, for each name and for each kind of conveyance or lien, five cents.

“ Every certificate other than to a paper, for the copying of which he is entitled to a fee, twenty-five cents.”

These provisions are re-enactments of provisions contained in section 3304 of the Code of Civil Procedure, and the last-named provisions were re-enactments of similar provisions contained in 2 Revised Statutes, part 3, chapter 10, title 3. One of the said provisions of the Revised Statutes which applied to the register of the city and county of New York (section 30), was as follows:

“To a county clerk, for searching the records in his office, or the records of mortgages deposited in his office by loan officers and commissioners of loans or the dockets of judgments, for each year, five cents.”

This provision was construed by the court of appeals and • held to contemplate compensation for four distinct lines of searches, viz.:

1. For mortgages.

2. For conveyances.

3. For mortgages deposited by loan officers and commisers of loans; and

4. For judgments. Curtis v. McNair, 68 N. Y., 198.

If, under the section of the Revised Statutes thus constThed, the register was entitled to charge five cents for mortgages, five cents for deeds, etc., he is under the law as it now stands, clearly entitled to charge five cents for deeds, five cents for mortgages, and five cents for all other instruments on record which are not embraced under the general head of mortgages or conveyances. The law expressly says: “each kind of conveyance or lien.”

But I cannot find any authority in the statute for a multiplication of the fee expressly given, by the number of lots or parcels covered by the same requisition. The statute permits multiplication for each year, for each name, and each kind of conveyance or lien, seached for. It is silent as to number of lots or parcels which may be affected by the same name or the same conveyance or lien. Consequently, under the operation of the familiar rule, expressio unius est exclusio alterius,” no authority can be implied for a multiplication by the number of lots or parcels, no matter how distinct, embraced by the same requisition. This seems to be so free from doubt as to justify a refusal to pursue the investigation any farther.

But the learned counsel to the corporation who appeared to protect the interests of the city and county, because the register has no personal interest in this matter, showed that for a long time past it has been the established custom of the register’s office to charge a separate fee for each distinct parcel of land covered by the same requisition; that a disturbance of that custom by a different interpretation or construction of the statute would, in a case like the present, yield to the public treasury a wholly inadequate compensation for the services to be rendered; and that, even as it is, the returns of the register’s office for the months of January and February, 1887, indicate that the receipts of the register’s office for the year will probably be less than the entire expense incurred by the city and county of New York for maintaining the said office.

I have given to this contention a good deal of thought, but cannot find that it would justify a different interpretation or construction of the statute than above indicated. There are, it is true, various rules of construction and of interpretation, which, briefly summed up, are to the effect that the rights of the government are not to be taken away by ambiguous words, but only by clear and unequivocal language. But these rights, properly understood, do not include the right of an officer, either in his own behalf or in behalf of a municipal corporation, to collect fees for certain services. Every such fee, and the amount thereof, depends upon an express enactment. True, it is not necessary that the legislature should directly authorize a fee or the amount thereof. It may empower a municipal corporation or an officer in general terms to collect certain fees and to fix the amount thereof. But in every such case the general grant of power must be broad enough for the purpose. Beyond that the right to collect a certain amount as a fee cannot, in the nature of things, rest upon a mere implication or a strained construction of a statute. In the case at bar, there is no such general grant of power. The legislature undertook to regulate the subject directly, and in doing so no right was conferred to multiply the fee by the number of distinct parcels covered by the same requisition. Moreover, the Code of Civil Procedure not only gives to a person feeling aggrieved the right to apply for a taxation of every fee charged by the register, but it further provides that each public officer, upon whom a duty is expressly imposed by law, must execute the same without fee or reward, except where a fee or other compensation therefor is expressly allowed by law, and that an officer or person to whom a fee or other compensation is allowed bylaw, for any service, shall not charge or receive a greater fee or reward for that service than is so allowed. Section 3280.

A careful examination of chapter 531 of the Laws of 1884, as a whole, also fails to disclose any reason leading to a different result. There is nothing in the statute, as a whole, or the intent or policy thereof, which sanctions any custom theretofore existing in the register’s office, or which permits me to disregard the ordinary rules of statutory and grammatical construction. Probably the legislature was of the opinion that cases like the present, or cases involving a considerable number of distinct parcels, were not likely to occur in great numbers, and that, therefore, it was not worth while to make specific provisions for them. If, in fact, such cases are of frequent occurrence, and the interpretation and construction given by me to the statute should lead to abuses, the attention of the legislature should be directed to these matters. At all events, the remedy, if any should be had, must come through legislation.

For the reasons stated, the register, upon the requisition in question, is entitled to $57.30 for the searches made, and to twenty-five cents for the certificate annexed, making a total of $57.55, and his fees áre hereby taxed accordingly.  