
    George Morgan, Respondent, v. The City of New York, Appellant.
    First Department,
    December 2, 1910.
    Municipal corporation— city not liable for notary’s fees.
    An employee of the city of New York, who is also a commissioner of deeds, cannot charge the city with fees for verifying affidavits made by persons doing business with liis department, but on the contrary must look for payment to-the person to whom he administered the oath.
    Appeal by the defendant, The City of Mew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 31st day of May, 1910, upon the verdict of a jury rendered by direction of the court. '
    
      Clarence L. Barber, for the- appellant.
    
      Alfred J. Talley,-for the respondent.
   Ingraham, P. J.,:

This action has been twice before this court, once on an appeal from a judgment for the defendant, which was affirmed, by this court (115 App. Div. 893), but reversed by the Court of Appeals (190 N. Y. 237); the second time on an appeal from a judgment entered upon the verdict of the. jury, in favor of the defendant, when the judgment was reversed and a new trial ordered (137 App. Div. 194). Upon the new trial then ordered the court directed a verdict for the plaintiff for the full amount claimed, and from the judgment entered'thereon the defendant appeals.

Since this case was argued our attention has been called to a decision of the Court of Appeals (Bookman v. City of New York, 200 N. Y. 53), in which the court held that there was no cause of action against the city of New York for the official fees of a notary public or commissioner of deeds verifying affidavits at the request of a city or county official; that the fees were due from the person to whom the notary public administered the oath, but no statutory or contractual relation existed between the city and the officers administering the oath upon which an action can be founded-; "that the “commissioner of deeds’ remedy is against the person who procured the service rendered, and if it is by a public officer it should be demanded at the time the service is rendered, or within such time thereafter as would enable the officer, in the presentation of his claim for audit, to include the same and be reimbursed ; ” and the case of Merzbach v. Mayor, etc. (163 N. Y. 16) and the decision of the Court of Appeals in this case (190 id. 237) were modified in accordance with the view then expressed. Counsel for the plaintiff seeks to distinguish the Bookman case from the case at bar, but the determination of the Court of Appeals that no cause of action exists against the defendant for these fees is as applicable to this case as to the Bookman case. The defendant excepted to the direction of a verdict for the plaintiff, and applying the decision in t'he Bookman case, that exception was well taken.

The Court of Appeals having now determined that the plaintiff is not entitled to judgment against the city, the judgment must be reversed, but without costs, and the complaint dismissed.

McLaughlin, Clarke, Scott and Dowling, JJ., concurred.

Judgment reversed, without costs, and complaint dismissed.  