
    In the Matter of the Application for Removal from Office of Thomas S. King as Police Justice of the City of Buffalo.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed February 9, 1892.)
    
    1. Costs—Proceedings to remove justice —Counsel fee not allowed —Laws 1847, chap. 280, § 25—Laws 1880, chap. 354, § 1.
    There is no authority for the allowance of costs to counsel in proceedings to remove justices of the peace from office, instituted after the amendment of 1880, chap. 354, § 1, was passed.
    2. Same—Appeal.
    This court has jurisdiction to review an order directing the payment of such counsel fees, upon appeal by the city, as it is a final order affecting a substantial right made in a special proceeding.
    Appeal by the city of Buffalo from an order of the general term of the supreme court in the fifth judicial department, certifying and taxing the expenses of a reference under chapter 854 of the Laws of 1880. Also a motion by Calvin S. Grosser, the complainant, for leave to withdraw his appeal from that part of said order which dismissed the proceeding to remove said King as police justice.
    In 1888, Calvin S. Grosser presented to the general term charges of official misconduct against Thomas S. King, as police justice of the' city of Buffalo, who appeared and denied the same. An order was thereupon made appointing a referee to take the proofs, and upon the report of the referee, including the evidence taken, the court found that the respondent was not guilty of the charges preferred and dismissed the proceedings. 25 St. Rep.,. 792. In the same order, upon the application of both the complainant and respondent, the court certified and taxed “ the reasonable expenses of such reference * * * at the sum of $4,057.85,” and directed that the same be paid as follows, viz.: to the.referee, $408.35.; to the stenographer, $499; to the counsel for the respondent, Thomas S. King, “ for counsel fees and disbursements,” $1,550; to the counsel for the complainant, Calvin S. Grosser* “ for counsel fees and disbursements upon such reference” $1,600. All of said sums, except the last, were subsequently paid by direction of the common council of the city of Buffalo, but, notwithstanding, this appeal was taken by the city from the order allowing all of the items, without distinction.
    The motion by Mr. Grosser for leave to withdraw his appeal from that part of said order which dismissed the proceeding, is based upon the fact that since the appeal was taken, said Thomas S. King has been re-elected to the office of police justice of said city.
    
      L. L. Sears, Jr., and Adelbert Moot, for complainant; Philip A. Jbaing, for the Gity of Buffalo.
    
      
       See 25 St. Rep., 792.
    
   Vann, J.

While the constitution authorizes the removal from •office of “ justices of the peace and judges or justices of inferior ■courts not of record ” by such courts as may be prescribed by law, it contains no provision for the allowance of the costs or expenses •of the proceeding. Const, of N. Y., Art. 6, § 18. We have been referred to no statute that is claimed to authorize the action of "the learned general term in taxing and certifying the amount allowed to compensate counsel, except the following section of the judiciary act of 1847, as subsequently amended.

Justices of the peace and judges and justices of inferior courts, not of record, and their clerks, may be removed, as provided by 4he constitution, by the supreme court at any general term thereof, .and such general term shall have power to order the proofs upon •any proceedings hereunder to be taken before a referee to be appointed by such general term, and to certify the reasonable expenses of such referee, which amount, so certified, and also the reasonable expenses of any reference as heretofore or hereafter taxed by •any general term of said court, under proceedings heretofore taken •under the act hereby amended, and remaining unpaid, is hereby ■declared to be a charge against the city, town or village within which such justice of the peace, judge, or justice of inferior court, ■not of record, or clerk, exercises the duties of his office. Such general term may also in its discretion require the person or persons instituting proceedings for the removal of either of the officials above named to give security, to be approved by such general term, for the expenses incident to the hearing and determination thereof, in case the charges against such official are not sustained.” Laws 1847, chap. 280, S 25, as amended by Laws 1880, chap. 354, § 1.

The part in italics is the original section, the rest having been added by the amendment. An analysis of the section shows that the supreme court, at any general term, has power to appoint a referee to take the proofs in a proceeding to remove one of the officers named and “ to certify the reasonable expenses of such referee, which amount, so certified,” is made a charge against the city, town or village within which such officer exercised the duties of his office. It is further provided that “ the reasonable expenses of any reference, as heretofore or hereafter taxed by any general ¡term of said court, under proceedings heretofore taken under the act hereby amended,” shall also be a charge upon the city, town or village in question. Until the section was amended, it gave the court no power to appoint a referee or to allow his expenses. By the amendment that power was conferred upon the court and the practice thus regulated as to all proceedings that should be instituted after the amendment went into effect

But the legislature was doubtless aware that for a long time it had been the practice of the court, under its general powers, to appoint referees in such proceedings ; so it went a step farther and authorized the court to tax the reasonable expenses of any reference “ under proceedings heretofore taken under the act hereby amended.” Thus provision was made for the taxation of the expenses of any reference that should be ordered in the future, as well as for any that had been ordered in the past As this would have required a retaxation of the expenses of references previously had, when they had already been taxed, the legislature dispensed with that formality by providing that the expenses theretofore taxed, as well as those thereafter to be taxed,, should be a charge upon the municipality interested. The statute, as thus read, provides for the payment of the expenses, (1) of such references as should be ordered in the future; (2) of such as had been ordered, but the expenses had not been taxed ; and (8) of such as had been ordered and the expenses had already been taxed. We think that it was the design of the legislature to limit the expenses to be allowed, whether in past or future references, to the compensation and disbursements of the referee,, and that the phrase “ reasonable expenses of any reference,” when the context is considered, means the same as the “ reasonable expenses of .the referee.” In the absence of express language, it would be unreasonable to suppose that .the legislature intended to-allow counsel fees in references previously ordered, without its express authority, and to withhold them in case of references to-be ordered, pursuant to its direct authorization. But, however this may be, “ the reasonable expenses of any reference,” whether heretofore or hereafter taxed,” are expressly confined to proceedings taken before the act was amended. The words “ under proceedings heretofore taken under the act hereby amended,” necessarily refer to references previously had, because they would be-inconsistent and absurd if they referred to references not yet ordered, or even authorized. “ Proceedings heretofore taken n mean such as were instituted before the amendment was passed, while “ proceedings hereunder to be taken ” mean such as should be instituted after the amendment was passed. The proceeding in question comes within the latter class, because it was not commenced until some years after the amendment went into effect. It is controlled, therefore, by that part of the section •which empowers the general term to certify “ the reasonable expenses of the referee.”

Even if the subsequent provision as to “the reasonable expenses of any reference ” has a more extended meaning, it has no-application to the case in hand. We think, therefore, that the learned general term inadvertently exceeded its power when it certified and taxed the counsel fees and disbursements of the parties to the proceeding and directed the payment of the same.

We also think that we have jurisdiction to review that part of the order appealed from by the city of Buffalo, at least, because it was a final order, affecting a substantial right, made in a special proceeding. Code Civ. Pro., §§ 190, 3333 and 3334; Re. N. Y., W. S. & B. R. R. Co., 94 N. Y., 287; Bergen v. Carman, 79 id., 146; Sturgis v. Spofford, 58 id., 103; McGregor v. Comstock, 19 id., 581.

The appeal involves the power of the general term to make any allowance for the compensation of counsel, not its discretion as to the amount that should be allowed, provided it had jurisdiction to allow anything for that purpose. ISTo question as to the allowance of costs, as such, to be paid by one party to another, is presented, but simply the power to certify and tax certain sums for the benefit of counsel, which sums, when thus certified and taxed, are declared by statute a charge against the municipal corporation where the officer sought to be removed discharged the functions of his office. The statute regards the complainant as a party to the proceeding, because it authorizes the general term to require-him to give security for the expenses incident to the hearing and determination of the charges. The proceeding was, therefore, a prosecution by a party within the meaning of § 3334 of the Code, although, as public interests were involved, he would not be allowed to discontinue the same without leave of the court.

We think that the order appealed from should be modified by striking out that part which taxes and certifies the sum of $1,600 as counsel fees and disbursements for the complainant, but without costs, because the notice of appeal was too broad, inasmuch as it was “ from the whole and every part of said order certifying and taxing the expenses of the reference herein.”

The motion of the complainant for leave to withdraw his appeal from the adjudication of the general term upon the merits of the controversy should be granted, because the points involved have become abstract questions by reason of events transpiring since the appeal was taken. As this motion is not opposed, it is granted without costs. Ordered accordingly.

All concur, except Haight, J., not voting.  