
    R. Gordon McNeil, Appellant, v. The Board of Supervisors of the County of Suffolk, Respondent.
    Second Department,
    July 24, 1906.
    Crime—when district attorney not authorized to offer rewards for apprehension of offenders of Motor Vehicle Law.
    The district attorney of the county of Suffolk has no authority to offer rewards to be paid to persons furnishing evidence upon which convictions shall be had of anticipated violations of the Motor Vehicle Law. The audit of claims for such rewards may be restrained by a taxpayer.
    The authority of the district attorney to create county charges is controlled by statute and he has no statutory authority to expend money for the prevention of crimes which are merely anticipated.
    
      It seems, moreover, that constables and deputy sheriffs would not be entitled to recover such rewards if the offer were valid as the arrest of such offenders is part of their duty.
    Appeal by the plaintiff, R. Gordon McNeil, from a judgment of tlie Supreme Court in favor of the defendant, entered in the office of tlie clerk of the county of Suffolk on the 23d day of January, 1905, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the 23d day of January, 1905, awarding an extra allowance to the defendant.
    
      William W. Niles, for the appellant.
    
      Timothy M. Griffing, for the respondent.
   Hirschberg, P. J.:

This is a taxpayer’s action, brought for the purpose of preventing the defendant from auditing, allowing and paying certain claims against the county for rewards offered by the district attorney. The facts are undisputed. On the 15th of June, 1904, a resolution was adopted by the defendant, as follows: “Resolved, that this Board request the District Attorney to offer an additional reward of Fifteen Dollars ($15) for the violation of the New York State Automobile Law.” Prior to the passage of that resolution, and under date of October 25, 1903, the district attorney had published the offer of a reward of ten dollars to any person furnishing the evidence upon which a conviction should be had for the violation of chapter 625 of the Laws of 1903, known as the “Bailey Law.” After the passage of the resolution referred to, he published the offer of a reward as follows: In pursuance of a resolution of the Board of Supervisors of Suffolk County, made on June 15, 1904, an additional reward of Fifteen ($15) dollars is hereby-offered and will be paid to any person furnishing the evidence upon which a conviction shall be had of any person for violating Chapter 538 of the Laws of 1904 of the State of New York, known as the ‘ Motor Vehicle Law.’ This additional Fifteen ($15) dollar^, coupled with the Ten ($10) dollars heretofore offered on October 26, 1903, and now in force, makes the total amount of the reward now in force Twenty-five ($25) dollars. Dated June 18, 1904.”

It is undisputed that a great many claims for the reward referred to have been presented to the board of supervisors for audit, and that it is the intention of that board to audit and allow such claims. The learned Special Term has found that such claims have been presented by constables and deputy sheriffs of the county who have made numerous arrests for the violation of the statutes referred to in the offers of reward, and that the district attorney had power to make the offer, and it dismissed the complaint on the theory that the rewards were lawful county charges.

I do not find any authority for the offer of the rewards by the district attorney. It is conceded that they were not offered in relation to offenses which had been committed at the time the rewards were offered, but that they were offered exclusively for the procurement of evidence of cases of offenses to be subsequently committed. The authority of the district attorney to create county charges, in so far as it exists, is created by statute, and seems to be limited to reimbursement for expenses actually and necessarily incurred by him in the prosecution of criminal actions arising in his county. The statutory provisions relating to the subject of county charges are now embodied in section 230 of the County Law (Laws of 1892, chap. 686) and are as follows: “ 2. All expenses necessarily incurred by the district attorney in criminal actions or proceedings arising in his county.” It would be a great strain of language to regard the offer of a sum of money to be paid by the county for evidence by which to secure the conviction of an offender, for a crime not yet committed, as an expense necessarily incurred by the district attorney in a criminal action. It is claimed by the respondent that subdivision 9 of section 230 of the County Law (supra) applies. That subdivision, however, only relates to “moneys necessarily expended by any county officer in executing the duties of his office in cases in which no specific compensation for such services is provided by law.”

I do not think the offers in question can be regarded in any sense as moneys expended by the district attorney in executing the duties of his office. His' duties are in the prosecution of offenses committed, and do not specifically include the prevention of crime in any other sense than as that duty devolves upon every good citizen.»

In People ex rel. Gardenier v. Supervisors (134 N. Y. 1) the subject of the power of the district attorney in incurring expenses as a county charge was thoroughly considered, and it was held that his power was ample- in the incurring of expenses in the prosecution of criminal offenses which had been committed, but it was nowhere suggested that it included the power to incur expenses in anticipation of the commission of crime. Indeed, the learned counsel for the respondent cites no authority in this State in support of his contention that the offers of the reward were within the power of the district attorney.

I may add that it is at least doubtful whether the claimants could obtain the rewards, even assuming they were offered by authority. In Atwood v. Armstrong (102 App. Div. 601) it was held that a police officer was not entitled to any portion of a reward offered for the arrest of a criminal, inasmuch as it was his duty as such officer to cause the arrest. It may fairly be assumed that constables and other peace officers are bound to arrest violators of the law where such violation is committed in their presence.

The judgment and order should be reversed and a new trial granted, costs to abide the final award of costs.

"Woodward, Jerks, Gayror and Bich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the final award of costs.  