
    The People of the State of New York ex rel. J. Sheldon Frost and Others, Relators, v. Egburt E. Woodbury and Others, Composing the State Board of Tax Commissioners, and Thomas Carmody, Attorney-General of the State of New York, Respondents.
    Third Department,
    March 4, 1914.
    Tax — attorney and client — defense of action brought against county clerk to compel refund of mortgage tax — when State must compensate defendant’s attorney for professional services.
    The county clerk in collecting a mortgage tax is not acting for the county; he is the agent of the State.
    Where a county attorney, with the knowledge of the Attorney-General, defends an action brought against a county clerk to recover a portion of a mortgage tax paid under protest and is successful, he is not acting for the county, and is entitled to be paid for the professional services rendered out of the fund under the control of the State Board of Tax Commissioners, which is charged by the statute with the payment of all necessary expenses of enforcing the Tax Law. This is true although the county clerk was under the erroneous opinion that it was the duty of the county attorney to conduct the defense on behalf of the county.
    Kellogg, J., dissented.
    Certiorari issued out of the Supreme Court and attested -on the 26th day of June, 1911, directed to Egburt E. Wood-bury and others, composing the State Board of Tax Commismissioners, and Thomas Carmody, as Attorney-General of the State of New York, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in relation to the disallowance of the claim of the relators for professional services rendered in defense of an action brought in the Supreme Court by the Hygienic Ice and Refrigerating Company against John Franey, as clerk of the county of Albany, for the recovery of a portion of the moneys paid by said company as a tax on a certain trust mortgage claimed by it to be in part a supplemental mortgage within the meaning of the Tax Law; and also directed to the Attorney-General of the State of New York commanding him to certify and return likewise all letters, writings and memoranda relating to such claim.
    
      
      Frost, Daring & Warner [J. S. Frost of counsel], for the relators.
    
      Thomas Carmody, Attorney-General [August Merrill, Deputy Attorney-General, of counsel], for the respondents.
   Woodward, J.:

On the 8th day of February, 1909, a mortgage of the Hygienic Ice and Refrigerating Company was presented to the clerk of Albany county for recording. The corporation claimed an exemption from a portion of the mortgage tax, which claim the county clerk refused to recognize, and the full amount of the tax was paid and the mortgage duly recorded, though the sum of $540 was paid under protest. On the 20th day of February, 1909, the mortgagor filed with the State Board of Tax Commissioners a petition to review the action of the county clerk, and while such proceeding was pending undetermined, and on the twenty-third day of February, an action was brought in the Supreme Court by said mortgagor against John Franey, as clerk of the county of Albany, as sole defendant, to recover the amount so paid under protest and asking that the defendant be restrained during the pendency of the action from paying over or distributing the said $540. Luther C. Warner was at the time county attorney of Albany county, and the summons and complaint, with other moving papers, were delivered to him by John Franey, evidently upon the theory that the duty belonged to him to defend the action, and Mr. Warner’s firm of Frost, Daring & Warner appeared in the action and successfully defended the same. They subsequently submitted a bill for services to the clerk of Albany county who in turn referred it to the State Board of Tax Commissioners for their approval, and allowance, and this body, upon the opinion of the Attorney-General, disallowed the claim, and the matter is brought here by a writ of certiorari for review.

The learned Attorney-General, in his return to the writ, denied that he had any notice of the appearance.of the relators in the action mentioned until the 11th day of May, 1910, and that the relators’ letter of March 8, 1909, informing him that the appearance was not made by Mr. Warner as county attorney was never received by his office, but upon the hearing it was stipulated that such letter was received, so that it appears that the Attorney-General, whose duty it would probably have been to take care of the action out of which this claim arose, had notice early in the litigation of the fact that Mr. Warner did not appear in the case as county attorney, and that the litigation was being conducted by the relators.

The Mortgage Tax Law of 1905 (Chap. 729, adding to Tax Law [Gen. Laws, chap. 24; Laws of 1896, chap. 908], art. 14) was strictly a revenue measure, providing for an annual tax of one-half of one per cent, and, while the law was remodeled by chapter 532 of the Laws of 1906 and made merely a recording tax of one-half of one per cent payable upon the recording of the mortgage, and, as amended, has been re-enacted by article 11 of the Tax Law (Consol. Laws, chap. 60 [Laws of 1909, chap. 62], as amd.), it has not changed in its essential aspect of-a revenue measure for the State, with incidental concessions to the localities from whence the tax is collected for the purpose of meeting the local taxes or expenses. The statute is not, however, in any sense a county law; it merely makes use of the recording officer in each of the counties to collect the revenue, and, sensible of its general character and of the impropriety of imposing any burden upon the counties as such, the Legislature in the original statute (Laws of 1905, chap. 729), provided that “Recording officers and county treasurers and the chamberlain of the city of New York, shall severally be entitled to receive all their necessary expenses for the purposes of this act, including printing, advertising, costs of lists, hire of clerks and assistants, being first approved and allowed by the State Board of Tax Commissioners, which shall be retained by them out of the moneys coming into their hands.” (Tax Law [Gen. Laws, chap. 24; Laws of 1896, chap. 908], § 311, added by Laws of 1905, chap. 729; renumbered § 299 and amd. by Laws of 1906, chap. 532.) And this language is substantially the same in section 262 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62) as it exists to-day. The county clerk, in collecting the recording tax, is not acting for the county; he is the agent of the State. His duties as county clerk require him to record mortgages upon property within the county, but the State, for the purposes of a revenue, forbid that he shall discharge this duty until the mortgagor has paid a certain fee, and the statute provides, in the phraseology of the present statute, that in the discharge of this obligation to the State he shall be “ entitled to receive all ” his “ necessary expenses for the purposes of this article, including printing, hire of clerks and assistants.” -Obviously if John Franey was not acting as county clerk but as agent of the State, in the transaction out of which the litigation grew, neither the county of Albany nor its county attorney had anything to do with the action, and the mere fact that John Franey thought this a proper matter to turn over to the county attorney did not in the least change the legal status of Mr. Warner; neither he nor his firm of lawyers was under any obligations to perform this service gratuitously for John Franey as the collecting agent of the State’s tax upon the recording of a mortgage, for the statute itself had provided that in this capacity he was entitled to “ receive all ” his necessary expenses. He was bound to collect the tax prescribed by the State, and if in doing this he was put to the expense of defending an action it was not in connection with any matter pertaining to the county of Albany, and the latter could not be put to any expense in the matter even to the extent of furnishing an attorney who was already receiving a salary for the duties prescribed by the conditions of his employment and which related strictly to the affairs of the county of Albany. (See Resolution of Appointment and County Law [Consol. Laws, chap. 11; Laws of 1909, chap. 16], § 210.)

Assuming that it was the duty of the Attorney-General generally to look after a matter of this character, the action was brought against “John Franey as Clerk of the County of Albany,” which would not suggest such a duty upon the part of the Attorney-General upon its face, and as soon as the real character of the action developed the relators concededly called the attention of that officer to the matter, and the litigation appears to have been carried forward to a successful issue with the knowledge and consent of the Attorney-General. The latter might have employed the relators originally for this purpose, and it would be rather technical, and inconsistent with the dignity of a great State, to hold that services performed in good faith, and resulting in advantage to the State, carried on with the full knowledge of the Attorney-General, could not be compensated out of a fund charged by the statute with “ all * * * necessary expenses for the purposes of this article.” As the record now stands, with the concession that the Attorney-General had notice of the real facts immediately after the relators appeared in the case, and that the litigation was permitted to go forward with no objection on the part of any one, we are of the opinion that the relators have shown a right to be compensated out of the fund — that the defense of this litigation was one of the necessary expenses for the purposes of this article,” and that John Franey might have employed other attorneys and properly charged the fund with such expense, and the situation is not changed, in so far as the rights of the relators are concerned, because he thought it was within the scope of the duties of Mr. Warner as county attorney. Mr. Warner never appeared as county attorney; the Attorney-General had notice at the outset that he did not appear in any official capacity, and the rights of the relators cannot be prejudiced by what John Franey did not know of the duties and obligations of Mr. Warner.

Whatever we might think of the question as presented by the original record, as modified by the stipulation of the Attorney-General, we are persuaded that the determination of the State Board of Tax Commissioners is not warranted, and that it should be overruled and the claim of the relators should be allowed as a proper and necessary expense of performing his duties as collector of the recording tax in the matter in question.

The determination is annulled and the claim of the relators allowed.

All concurred, except Kellogg, J., dissenting.

Determination annulled on law and facts and the claim of relators allowed, with fifty dollars costs and disbursements.  