
    People v. Ryall, (two cases.)
    
      (Supreme Court, General Term, Third Department.
    
    November 26, 1890.)
    Public Officers—Failure to Subscribe Oath—Misdemeanor.
    Laws N. Y. 1874, c. 357, creating the office oí superintendent of public works for the village of Saratoga Springs, provides (section 6) that before such superintendent shall receive any portion of his salary he shall make oath that he has not been interested, pecuniarily, in any contract, work, or other matter connected with his official duties. Held, that the making of such oath is an individual act on the part of the superintendent, and that his omission to make it did not render him liable to indictment under Pen. Code N. Y. § 154, punishing as a misdemeanor the willful omission by a public officer of any public duty enjoined upon him by law.
    Appeals from court of sessions, Saratoga county.
    These are appeals from judgments sustaining the demurrer to two indictments and discharging the defendant. The first indictment contains one count, and recites that the grand jury “accuse Benjamin Ryall of the crime of willful omission to perform a public duty enjoined bylaw upon a public officer committed as follows: The'said Benjamin Ryall on the fifth day of February, in the year of our Lord one thousand eight hundred and ninety, at the town of Saratoga Springs, in the county of Saratoga, aforesaid, being the superintendent of public works in and for the village of Saratoga Springs, Saratoga county, Hew York, duly appointed by the trustees of the village of Saratoga Springs, and as such, being a public officer, and a person holding a public trust ■and employment, willfully omitted to make oath and execute an affidavit that he had not been interested pecuniarily in any contract, work, materials, or •other matter, connected with his official duties, as prescribed by chapter 257 of the Laws of 1874, before receiving a portion of his salary and compensation provided for by section five of said chapter 257 of Laws 1874, as such superintendent of public works, to-wit, the sum of two hundred dollars received by him on that day, contrary,” etc. The second indictment consists of two counts, the first of which is in the same words as the above, except that the omission is charged with respect to his salary received on the 12th day of August, 1889. The second count is, in substance, the same as the first, except that his appointment to and acceptance of the office are more fully set forth.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      T. F. Hamilton, Dist. Atty., for appellant. John Foley, for respondent.
   Landon, J.

The indictments are under section 154, Pen. Code, which is as follows: “Omission of duty by public officers. Where any duty is or shall be enjoined by lafy upon any public officer, or upon any person holding a public trust or employment, every willful omission to perform such duty, where no special provision shall have been made for the punishment of such delinquency, is punishable as a misdemeanor.” The office of superintendent of public works for the village of Saratoga Springs is created by chapter 257, Laws 1874. His duties are prescribed by the act, and are substantially as follows: He has charge of all the streets, sidewalks, alleys, bridges, culverts, etc., and, if they are out of repair, it is his duty to fix them. It is his duty to remove all obstructions from the streets, etc., to report to the board of trustees the condition of such streets, etc., and to do many other things connected with the streets; and he shall be personally responsible to the public for neglect of duty to the same extent as the commissioners of said village. He has a salary of $800. The duty which he is charged with omitting is described in section 6: “Sec. 6. Before said superintendent shall receive any portion of his salary or compensation, he shall make oath and execute an affidavit that he has not in any manner been interested, pecuniarily, in any contract, work, materials, or other matter, connected with his official duties, as. prescribed by this act, which oath or affidavit shall be filed with the receiver of taxes and assessments of said town or village. ” The indictments charge-no omission of duty with respect to the streets. The only omission charged is the omission to make the oath and execute the affidavit prescribed in section 6. The making such oath and executing such affidavit cannot be done in an official capacity, but must be done by the defendant in his personal capacity. It is his conscience that is challenged. As an individual he knows whether as an officer he has done anything forbidden, and as an individual he must make oath. The omission to make the oath was his individual, not his official, omission. The law does not require the defendant to make the oath and execute the affidavit. It leaves that optional with him, and suspends his right to receive his salary until he shall make oath and execute affidavit. It follows that the wrong done consisted in defendant’s receiving his salary before his right to receive it was complete. If that is a crime, it is not the one-of which he is accused. Judgments affirmed. All concur.  