
    The People, App’lts, v. Benjamin Ryall, Resp’t (2 cases).
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 28, 1890.)
    
    Officers—Omission of duty—Penar Code, § 154.
    An omission to make the affidavit required by § 6 of cliap. 257, Laws 1874, before the superintendent of public works shall receive any of his sal ary, is an individual and not an official omission, and is not indictable under § 154 of the Penal Code.
    Appeal from- the judgments of the court of sessions of Sara-toga county sustaining the demurrer to two indictments and discharging the defendant.
    The first indictment contained one count and recites that the grand jury “accuse Benjamin Ryall of the crime of willful omission to perform a public duty enjoined by law upon a public officer, committed as follows: The said Benjamin Ryall on the 5th 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, New 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 § 5 of said chapter 257 of Laws 1874, as such superintendent of ptiblic 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.
    
      T. F. Hamilton, dist.-att’y, for app’lts; John Foley, for resp’t.
   Lándon, J.

— The indictments are under § 154, Penal Code, which is as follows: “ Omission of duty by public officer. Where any duty is or shall be enjoined by law 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 § 6: “Section 6. Befo, e sail 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 oath and execute the affidavit prescribed in § 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.

Learned, P. J., and Mayham, J., concur.  