
    PEOPLE ex rel. FRASER v. BOARD OF AUDITORS OF TOWN OF HAMDEN.
    (Supreme Court, General Term, Fourth Department.
    September, 1893.)
    1. Justices op the Peace—Fees.
    Laws 1845, c. 180, § 26, as amended by Laws 1847, c. 455, providing that a warrant Issued by a magistrate outside oí the town where an offense is committed shall authorize the offender to be taken for trial before a magistrate of the town, and that the magistrate issuing the warrant shall be entitled to no compensation other than for issuing tile warrant, is repealed by Code Grim. Proc. §§ 150, 151, 158, 161, 164, providing that the offender be taken before the magistrate issuing the warrant, and such magistrate may recover from the town fees for trial of the offender. People ex rel. Fraser v. Board of Auditors, (Sup.) 2 N. Y. Supp. 609, followed.
    
      % Mandamus—To Town Auditors—When Allowed.
    The fact that a magistrate has a right to appeal to the board of supervisors from a refusal of the auditors of a town to allow his claim for trying persons accused of crime is not ground for refusing a mandamus to compel such allowance.
    Appeal from special term, Delaware county.
    Mandamus on the relation of R. A. Fraser to compel the board of auditors of the town of Hamden to audit and allow relator’s claim. From an order directing the issuance of the writ1 said board appeals.
    Affirmed.
    Argued before HARDIN, P. J., and MERWIN, J.
    Abram C. Crosby, for appellant.
    R. A. Fraser, for respondent.
   MERWIN, J.

In the year 1889 the relator was a justice of the peace in and for the county of Delaware, residing in the. town of Delhi. In January of that year, upon proper application, he issued warrants, in due form of law, for the arrest of certain parties who-were charged with the commission of offenses in the town of Hamden, in said county. The parties were arrested and brought before the relator, and the proceedings in each case were continued before him', as a court of special sessions, to their determination. The claim of the relator in question in this case is for Ms fees in those cases. He presented his account in due form to the board of auditors of the town of Hamden at their annual meeting in November, 1889, but the board rejected it, and refused to audit and allow the same, or any part thereof. The present proceeding was commenced about January 1, 1890. There was no dispute at the special term about the facts. Nor is the ■correctness of the bill of plaintiff disputed, assuming that it is a proper one to be allowed. By section 26 of chapter 180 of the "Laws of 1845, as amended by chapter 455 of the Laws of 1847, it is provided as follows:

‘•And whenever any criminal warrant or process shall be issued by any magistrate residing out of the town or city wherein the offense shall have "been committed, it shall authorize the officer executing the same, to carry the person charged with an offense under this act, before any magistrate resident and being in the town or city wherein such offense shall have been -committed, to be proceeded against according to the provisions of the fifteenth section of this act; but the magistrate issuing such warrant or process, shall not lose any jurisdiction over the trial and proceedings against such persons by reason of anything herein contained, nor shall such magistrate be allowed any compensation for any further proceedings in any such case beyond issuing such warrant or process.”

The claim of the appeEant is that- this statute is stiE in force, and that under it the relator had no legal claim against the town, at least for any fees for services beyond the issuing of the warrants. This precise question was fully considered by Justice Parker in the case of People ex rel. Fraser v. Board of Auditors, (Sup.) 2 N. Y. Supp. 609, and it was there held that the authority and requirement in the act of 1845 to make the warrant returnable "before a magistrate of the town where the offense was committed were in effect repealed by the provisions of the Code of Criminal Procedure, and that with such repeal the prohibition as to fees "became inoperative. For the reasons stated in the opinion in that case we are inclined to concur in the view that the right given by the act of 1845 to make the warrant returnable before a justice ■of the town where the offense was committed was taken away by the provisions of the Code of Criminal Procedure. The prohibition as to" fees applies only to the cases within the scope and under the control of the quoted provision of the act. The phrase ■“any such case” refers only to cases where the power is given to transfer to a justice of the town where the offense was committed. That was an essential element to the prohibition, and, that element being absent, the main reason and ground for the prohibition fail. We think that the prohibition is not applicable to the present case. It is not necessary to consider the effect of section 165 of “the town law,” as that was not in force when the account of plaintiff accrued.

The appeEant further claims that the motion of the relator should have been denied because he had another legal remedy, in that he had a right to appeal to the board of supervisors, under the provisions of chapter 832 of the Laws of 1866. This objection does not appear to have been taken at the special term. If not, it should not be available here. Town of Mentz v. Cook, 108 N. Y. 504, 15 N. E. Rep. 541. In People v. Town Auditors of Shawangunk, 1 How. Pr. (N. S.) 224, it was held in a case like the present one that the remedy by mandamus was proper, although the relator had the right of appeal to the board of supervisors. In People v. Town Auditors of Westford, 53 Barb. 555, a writ of mandamus was allowed, although the statute of 1866 was then in force. So it has been held that as to corporations and ministerial officers the existence of another and an adequate remedy is no objection to awarding the writ. People v. Steele, 2 Barb. 418; Buck v. Lockport, 6 Lans. 251. The relator had no remedy by action, and the fact that he. might have appealed to another board is not, under the circumstances of this case, a good ground for reversal. ' It follows that the order should be affirmed.

Order affirmed, with $10 costs and disbursements.  