
    In the Matter of the Application of MOSES COIT TYLER, Administrator of JOHN TYLER, Deceased, Appellant, foe a Writ of Mandamus to the BOARD OF SUPERVISORS OF TOMPKINS COUNTY, Respondent.
    
      Acting surrogate under a special act — compensation of, not affected by an act legalizing-his action— to what salary he is entitled — for what period.
    
    Section 16 of article 6 of tlie Constitution of the State of New York authorizes the legislature, upon the application of a hoard of supervisors, to provide for the election of local officers, not exceeding two, to discharge the duties of county judge and of surrogate in case of their inability to act or of a vacancy.
    Chapter 279, Laws of 1858, providing for such a local officer in Tompkins county, declared that he should be designated as special county judge, and directed that, he should receive such compensation as the board of supervisors allowed.
    
      A special county judge of said county, elected under said law of 1858, acted therein as surrogate without first procuring the proof of authority to act provided for by section 2487 of the Code of Civil Procedure.
    
      Held, that section 2484 of the Code of Civil Procedure, relative to supplying a vacancy in the office of surrogate, did not apply to this case, and that the acting surrogate's authority was derived entirely from the act of 1858; that, therefore, section 2493 of said Code, fixing the compensation of a substitute appointed under section 2484 of the Code, at the rate of the salary of the surrogate for his period of service, had no application, aud that the acting surrogate of Tompkins county was limited to such compensation as should be awarded him by the board of supervisors.
    The acts of such acting surrogate were, by chapter 221, Laws of 1889, legalized, so far as they were illegal because of his failure to procure proof of his authority under said section 2487 of the Code of Civil Procedure.
    
      Held, that this statute of 1889 did not change his status so far as compensation was concerned.
    
      Semble, that a special surrogate entitled, under said section 2493 1 ‘ for the time during which he so acts,” to the compensation of a surrogate, could claim only for the time when actually engaged, and was entitled to nothing when not acting.
    Appeal by Moses Coit Tyler, as ancillary administrator, with the will annexed, of John Tyler, deceased, from an order, entered in the clerk’s office of Tompkins county on the 8th day of December, 1890, denying his application for a writ of mandamus to the Board of Supervisors of Tompkins County, requiring it to audit and pay a claim of said John Tyler for services while acting as surrogate in the county of Tompkins.
    In the year 1888 John Tyler was the special county judge of the county of Tompkins, receiving a salary as such. From February 9, 1888, to March eighth of the same year, Hon. Marcus Lyon, the county judge and surrogate of that county, was absent from the county. During his absence the special county judge on certain days performed acts of an official character as acting surrogate. On other days he neither performed nor assumed to perform any official acts whatever. He was a practicing lawyer in Ithaca, had a separate office, and occasionally during the time went to the county judge’s office and performed acts as surrogate.
    There was a duly appointed clerk of the Surrogate’s Court during all that time who received a salary from the county. The salary of the Tompkins county judge and surrogate is $2,500 per annum. No order or proof was obtained,, or made as required by sections 2481 and 2488 of the Code of Civil Procedure authorizing or entitling the special county judge to act as surrogate of Tompkins county.
    On the 17th of November, 1888, John Tyler presented to the board of supervisors of Tompkins county a duly verified claim for $208.33 as compensation for the services alleged to have been rendered. This claim was for the entire time the county judge was absent. It was rejected by the board. Subsequently the legislature passed an act legalizing the official acts performed by John Tyler as acting surrogate between January 1, 1886, and January 1, 1889. (Laws 1889, chap. 221.)
    JolnvTyler died in the month of August, 1889, in the State of Michigan, where he then resided, leaving a last will and testament. On November 1, 1890, ancillary letters of administration, with the will annexed, were duly issued to Moses 0. Tyler -within the State of New York. The ancillary administrator, on the 12th of November, 1890, presented this claim to the board of supervisors, and it was again rejected. Thereupon Tyler, as such administrator, procured .an order to show cause before a Special Term of this court why a ■mandamus should not issue to compel the board of supervisors to raise by taxation an amount sufficient to pay such claim. Upon the return of the order to show cause the respondent appeared, and •certain 'affidavits were read in opposition to the application of the appellant. The appellant’s motion was denied. It is from this order that the appellant appealed.
    
      William N. Noble, for the appellant.
    
      William A. Finch, for the respondent.
   MaiotN, J.:

Section 16 of article 6 of the Constitution of the State of New York provides: “The legislature may, on application of the board of supervisors, provide for the election of local officers not to exceed two in any county, to discharge the duties of county judge and of surrogate in cases of their inability or of a vacancy, and to exercise such other powers in special cases as may be provided by law.”

In pursuance of this provision of the Constitution, the legislature, In 1858, passed an act declaring that there should be elected in Tompkins county a local officer “to discharge the duties of county judge and surrogate of said county in cases of vacancy or the absence ■or other inability of such officer.” This act, after stating that such ■officer should be a counselor-at-law of the Supreme Court, and that he should possess certain powers and perform 'certain duties, provided that he should be designated as special county judge, and “ shall receive for the services to be rendered by him, under the provisions of this act, such compensation as shall be allowed to him by the board of supervisors in said county.” (Laws 1858, chap. 279.)

It is contended by the appellant that the decedent was authorized by this statute to act as surrogate in the absence of the county judge, and hence that his right to so act ivas not dependent upon the provisions of section 2484 of the Code of Civil Procedure, nor restricted by the last paragraph of that section, which provides that before an officer is entitled to act, as prescribed in that section, proof of his authority must be made as prescribed in section 2487.

Section 2484 provides: “ Where, in any county, except New York or Kings, the office of surrogate is vacant; or the surrogate is disabled, by reason of sickness, absence or lunacy; and a special provision is not made bylaw — fen* the discharge of the duties of his office i/n that contingency; the duties of his office must be discharged until the vacancy is filled or the disability ceases, as follows: 1. By the special surrogate ; 2 * * * By the special county judge; 3. * * * By the county judge; 4. * * * By the district attorney.”

It will be observed that section 2484 provides who shall act in ■case of a vacancy, absence or other disability only where there is no •special provision of law for the discharge of the duties of that •office in such contingency. In Tompkins county a local officer was •elected to discharge the duties of surrogate in the absence of that •officer. Hence wo are disposed to adopt the appellant’s theory that .the provisions of section 2484 are not applicable in this case.

Assuming, then, that the statute of 1858 conferred upon the ■decedent the authority to act as such surrogate, independent of section 2484, the question arises whether section 2493 has any application .to this case. That section provides that an officer who acts as surrogate as prescribed in the last nine sections must be paid for the time he so acts a compensation equal pro rata to the salary of the surrogate or county judge. In this case the decedent acted as-surrogate, not as prescribed by the sections of the Gode relating to-that subject, but independent of those sections, and under the provisions of the statute of 1858, which declared that he should receive for his services such compensation as the board of supervisors should allow. Therefore, we are of the- opinion that section 2493 of the Code of Civil Procedure is not applicable to this case, and that the decedent was entitled only to such compensation as was allowed by ■the board of supervisors.

If, however, our conclusion that the provisions of the Code are not applicable in this case is wrong, still, as those provisions were-not complied with, it is difficult to discover upon what theory the-appellant is entitled to the relief sought. No proof of the authority of the decedent to act as such surrogate was given, nor order made as-required by sections 2487 and 2488 of the Code. We think the making-of such proof and the obtaining of such an order was a condition precedent to the testator’s right to act as such surrogate, if acting under the provisions of the Code, and that at least as to him his-acts were so far unauthorized that lie was not entitled to the-compensation provided for by section 2493.

But it is said that the act of 1889 (Laws 1889, cliap. 221), which-was a statute to legalize the official acts of the decedent performed' between January 1, 1886, and January 1, 1889, by reason of any failure to make proof as to his authority, has, by relation, supplied the required authority for the acts of the decedent as such surrogate. By this statute his acts were legalized as to third persons, so far as-the legislature could do so, but we think it was not its .purpose or intent to change the status of the decedent, so far as the question of compensation was concerned, nor do we think that such was the effect of the statute.

There is also another reason why this order should be affirmed. Section 2493 provides that the officer or person therein mentioned “ must be paid,for the time during which he so acts, a compensation equal pro rata to the salary of the surrogate; or * * * county judge.” We think a fair construction of this provision requires us to hold that even if entitled to compensation under the Code the. decedent was entitled only td^such compensation while acting as such surrogate, and that he was not entitled to compensation when not so acting. The papers read on the motion in this case show that the testator acted during only a portion of the time for which he seeks compensation. Therefore, in any event, his claim was for too much and properly disallowed. (People ex rel. Byrnes v. Green, 64 Barb., 162; People ex rel. Ketteltas v. Cady, 2 Hun, 224.)

These considerations lead to the conclusion that the order should be affirmed.

Merwin, J., concurred.

Order affirmed, with ten dollars costs and disbursements.  