
    The People ex rel. Alexander Meakim et al., Com’rs of Excise, v. Leonard A. Giegerich, Clerk of the City and County of New York.
    
      (Supreme Court, Chambers, New York County,
    
    
      Filed May, 1891.)
    
    Excise—Bonds—County clebk.
    The county clerk of New York is the clerk of the city within the meaning of the excise law of 1857, with whom the bonds taken by the commissioners must be filed, and he is entitled to receive the fee prescribed by § 3804 of the Code upon the filing of each bond.
    Application for mandamus.
    
    
      Edward Browne, for commissioners of excise; William H. Clark, corporation counsel, for def’t.
   Lawrence, J.

This is an application for a mandamus to compel the clerk of the city and county of Mew York to take and file the bonds of applicants, which are given to the excise board, without charging any fee therefor.

The county clerk refuses to take and file the bonds, basing such refusal upon § 3304 of the Code of Civil Procedure, which provides that “ A county clerk is entitled for the services specified in this section, except where another fee is allowed therefor by special statutory provision, to the following fees: * * * Eor filing any paper required by law to be filed in his office, other than as expressly provided for in this section, six cents. For filing any paper deposited with him for safe keeping^ six cents.”

The bonds which are the subject of this application were delivered to the relators pursuant to § 28 of chap. '628 of the Laws of 1857, which provides that: “Every bond taken pursuant to the provisions of this act shall, within ten days after the execution of the same, be filed in the office of the clerk of the town or village in which the license shall be granted, and in the cities, in the city clerk’s office.”

If, as the relators assert, the clerk of the city and county of New York is not the city clerk, it would be, as the counsel for the respondent contends, a short answer to this application to say that no right to a mandamus is shown, for the reason that no duty, under that construction of the statute of 1857, rests upon the county clerk to receive the bonds with or without the payment of fees. I think that it is manifest, however, that the clerk of the city and county of New York is the city clerk, within the meaning of the statute. The clerk of the county of New York had for years before the passage of the act of 1857 been designated as the clerk of the city and county oí New York. He was both the city clerk and the county clerk. Constitution 1821; Constitution 1846. It could not have been intended by the Legislature of 1857 that in this country, where so many bonds are required to be taken by the excise commissioners, there should be no place of deposit. It is plain to me that the legislature understood that by the constitution the county clerk of New York was also, as his official designation imports, the clerk of the city, and that with him the bonds taken by the relators under the act should be filed. I find no difficulty in holding under this interpretation of the act of 1857, that the county clerk is entitled to receive the fee upon the filing of each bond which is prescribed by § 8804 of the Code of Civil Procedure.

There is no other special fee prescribed by the act of 1857, nor by any other statute to which I have been referred, so as to bring the bonds in question within the exception contained in that section of the Code. Nor are these bonds excepted in any way from the operation of that section. The clerk is entitled to the fee for the filing of any paper other than those expressly provided for by this section, and he is entitled to the fee for any paper deposited with him for safe keeping, and those fees, when received by him under the provisions of chap. 299 of the Laws of 1884, belong to the city. Whether it is anomalous to provide that fees shall be paid by one city officer to another for the benefit of the city treasury is a question with which the court has no concern.

Regarding the provisions of the Code of Civil Procedure as imperative, and as embracing the bonds in question, I must deny this motion; but as it relates to public officers and interprets a statute relating to a public duty, the denial will be without costs.  