
    The People of the State of New York ex rel. William H. Seaman, Relator, v. James H. Cocks and Others, Constituting the Board of Supervisors of the County of Nassau, State of New York, Respondents.
    Second Department,
    March 29, 1912.
    Municipal corporation — certiorari to review proceedings, of hoard of supervisors in removing county superintendent of highways from office — Highway Law construed—plans and specifications for town . highways — malfeasance defined.
    Certiorari to review the proceedings of a hoard of supervisors in removing a county superintendent of highways, pursuant to section 30 of the ' Highway Law, for malfeasance in office hy reason of the receipt hy him of moneys from a town for the preparation of plans and specifications for the improvement of a highway. Evidence examined, and held, that, although the county superintendent may have misconceived his rights, he should be reinstated.
    Malfeasance is the doing of an act which is positively unlawful or wrongful, and in order to justify the removal of a county superintendent of highways must affect his performance as such officer. Thus, a misconception of his rights affords no ground for a conclusion of malfeasance.
    
      It seems, that he may not voluntarily perform such services and thereby create a charge against the town.
    No absolute duty rests upon the county superintendent of highways to prepare and furnish plans, specifications and estimates for the repair and improvement of strictly town highways, but he may in a proper case decline to do so and call upon the highway commissioner to provide the same.
    Certiorari issued out of the Supreme Court and attested on the 11th day of September, 1911, directed to James H. Cocks and" others, constituting the board of supervisors of the county of Nassau, State of New York, commanding them to certify and return to the office of the clerk of the county of Nassau all and singular their proceedings had in removing the relator from office:
    
      M. Linn Bruce [John J. Graham with him on the brief], for the relator.
    
      Harry W. Moore [Edward J. Deasy with him on the brief], for the respondents.
   Per Curiam:

The relator was found guilty of charges and removed by the board of supervisors of the county of Nassau from his office as county superintendent of highways of that county, pursuant to section 30 of the Highway Law (Consol. Laws, chap. 25 [Laws of 1909, chap. 30], as amd. by Laws of 1910, chap. 567), for malfeasance in office by reason of the receipt of certain moneys from the town of North Hempstead in said county. That town adopted a proposition to macadamize an avenue in the town, and thereupon the relator, a civil engineer by profession, was employed and was retained at the instance and request of the town superintendent of highways to prepare plans and specifications for the improvement. He did so and his. work was accepted. He presented a bill therefor, made out to him personally, which was approved by the town superintendent and paid by order of the town board. This action was the sole ground of removal. •

We find nothing in the Highway Law which in terms prohibits the county superintendent from practice of his profession as a civil engineer, or which in terms prohibits the person who is the occupant of that office from doing such work personally for the town. The learned counsel for the respondents calls attention to certain provisions of section 33 of the Highway Law, which prescribes the general powers and duties of such officer, which provide that he shall have general supervision of the work of constructing, improving and repairing bridges and town highways in his district or county, and that he shall approve the plans, specifications and estimates for the construction and maintenance of town highways. And he also points out section 48, which provides that the contracts for town highways shall be awarded by the town superintendent in accordance with estimates, plans and specifications to be furnished by the district or county superintendent or by the commission as provided in this chapter, which in turn refers to the provision of subdivision 5 of section 15, that reads: “Cause plans, specifications and estimates to be prepared for the repair and improvement of highways and the construction and repair of bridges when requested so to do by a district, county or town superintendent. ” We agree with the learned Attorney-General of the State, whose opinion is returned with the record, in his conclusion as follows: “ Construing the statute as a whole, I am of the opinion that no absolute duty rests upon the county superintendent to prepare and furnish plans, specifications and estimates for the repair and improvement of strictly town highways, but that the statute contemplates that he may in a proper case decline to do so and call upon the Highway Commission to provide the same. Inasmuch as the means is afforded by the statute for procuring such plans, specifications and estimates without expense to the town, it would seem to be quite clear that he may not voluntarily perform such services and thereby create a charge against the town.” But if the relator could not legally present a claim against the town for such work done under retainer or voluntarily, such action would he wrongful to the town only.

The malfeasance that justifies this removal must be such as affects his performance as county superintendent. The officer must be separated from the man. (See Mech. Pub. Off. § 457.) The removal rests specifically upon the naked act. It is not asserted that in any way the relator used or abused his office as county superintendent in this work that was done. On the contrary, he asserted before the board, without contradiction or demur, that the bills were for expenses actually paid out by him for his personal employees — engineers, draftsmen, office force; that the entire engineering work was honestly done by that office force, and that the bills rendered did not include any of his personal service as county superintendent.

Suppose that the law should be construed to require-the county superintendent to provide such plans and specifications. There is no suggestion that he had any county or town employee under his control whose duty it was to do the work. It would follow, then, that either the county superintendent must himself do it all or might employ such outside force as would be required for that purpose. It would seem almost absurd to conclude that an officer charged with so many and multifarious duties in connection with improvements through out the county must exclusively perform such work in every detail thereof by his individual labor—not to speak of the remuneration of $1,800 a year.. If, on the other hand, the law should be construed to permit the employment of assistants, then for aught that appears the relator has done no more than this, and the fact that he personally presented a bill therefor to the town authorities would hardly be a malfeasance in his county office.

But there is a further consideration. Malfeasance is the doing of an act which is. “positively unlawful or wrongful” (Cent. Dict.), which one ought not to do at all. (Bell v. Josselyn, 9 Gray, 307.) It is an act wholly wrongful and unlawful (Coite v. Lynes, 33 Conn. 109), and in Stokes v. Stokes (23 App. Div. 558) it is said that a misconception of one’s rights affords no ground for a conclusion of malfeasance. We think that upon the record the evidence indicates that the relator at worst but misconceived his rights, in that he supposed that there was no legal objection to his rendition of this account for such work.

The writ should be sustained, the proceeding annulled and the relator should be reinstated, but without costs.

Jenks, P. J., Hirschberg, Burr, Woodward and Rich, JJ., concurred.

Determination annulled and relator reinstated, without costs.  