Townshend v. Dyckman

2 E.D. Smith 224

• Court: New York Court of Common Pleas
• Decided: December 15, 1853
• Status: Published

Opinion

By the Court. Woodruff, J.

This action was brought to recover from the defendant five cents, paid by the plaintiff to him, under the following circumstances : The defendant, being register of the city and county of ¡New York, and as sxich having the custody and control of the records of conveyances and mortgages and the volumes of the index thereto, required the payment of five cents as a condition upon which alone he would permit the defendant to examine the index to the books of records in his office, for one yeai*, and upon the plaintiff’s attempting to examine one of the volumes of the index, for the purpose of such examination, the defendant forcibly took it from him, and refused to allow the plaintiff to inspect such index until the five cents were paid. The plaintiff then paid the amount, and brought this action to recover back the amount paid, and judgment being rendered in the plaintiff’s favor below, the defendant appeals to this court.

We are saved the necessity of examining the question, whether there is any thing in the fee bill regxxlating the fees of the register, (2 Revised Statutes, 638, § 40, [§ 30,]) which authorized the register to make this charge of five cents.

The appellant’s counsel not only concede but insist that the subject of this particular charge, (i. e., an application by a person to be permitted to make an examination himself in the index,) is not embraced in that statute. The respondent of course insists, that no warrant for the chai’ge can be found in that statute. When both parties agree on the subject, we cannot be expected to inquire whether they are right or not, where no parties but themselves will be affected hy our decision. (See opinion of Roosevelt, J., in Townshend v. This Defendant, 7 How. Pr. Rep. 318.)

(a)

Assuming, then, that the statute referred to did not warrant the charge; the only statute under which it can be sustained, and the only statute under which it is sought to be sustained, is section 50 of 2 Revised Statutes, (4th ed.) p. 473, which requires the register to keep books in which deeds and mortgages shall be recorded, and an index thereto, which index shall, at all proper times, be open for the inspection of ,any person paying therefor the fees allowed by law.

If, then, there is no law specifying such a charge, (and unless it is found in the fee hill, none is suggested to us,) no fees are allowed hy law for a search made hy any other person than the register himself and his assistants.

I am clearly of opinion, that the act of 1840, chap. 342, § 13, does not authorize it. Nor was the charge made according to the rates specified in that section.

It is agreed, that the statute which prohibits the taking illegal fees, applies only to services mentioned in the fee bill, (Supervisors of Onondaga v. Briggs, 2 Denio, 24,) and the defendant contends that, as permitting a person to inspect the index, is not a service mentioned in the fee Dill j therefore the register is allowed by law to make the charge in question.

This is in effect saying that he is “ allowed by law ” to charge whatever fees he may think proper for permitting an inspection of the index, because no statute other than the above § 50 expressly prohibits it; or if the claim does not go so far as to leave the amount of charge to the mere discretion of the register, it leaves the amount to be settled by the value of the privilege granted. This is not the meaning of the term, “ allowed by law,” in the statute. The legislature were making a modification of the law regulating the duties of the register, and they used those words to render it clear that the fees allowed by law were to be still continued. It seems to me that they used the words under a conviction that fees were allowed affirmatively by the laws then existing, for the duties mentioned; but it is here conceded by counsel, that if the words were used under such conviction, the legislature were mistaken. If that be so, this must be a case omitted by the previous statutes, and the register was not entitled to make the charge.

But it is urged, that this was a voluntary payment. The plaintiff had a clear legal right to inspect this index, and if the defendant, having the possession and control thereof, made use of his official authority, and under cover thereof exacted fees to which he had no legal claim, the payment was not a voluntary payment, but a payment by compulsion. If there was no authority to make the charge, its exaction was coercion as truly as if the register were to refuse to record a deed or render a service, upon the prompt rendering of which the security, not only of millions of property, but oftentimes very important rights of persons, depends, and which it is his plain duty to render. Such an abuse of official power, and of his control over public records, which he alone has in virtue of his public office, is, to my mind, coércion of a very efficient character.

In this respect this is like the cases, Rigley v. Gelston, 9 Johns. 203; Clinton v. Strong, Ib. 369 ; Frye v. Lockwood, 4 Cowen, 454; and Parker v. The Great Western Railroad Co., 7 M. & Gr. 253. See, also, Snowder v. Dans, 1 Taunt. 358; Oatis v. Hudson, 5 Eng. L. and Eq. R. 469.

And the same cases dispose of the argument, that the defendant having received the money and paid it over to the city treasury, acting, as is claimed therein, as the agent of the city, is not himself liable. His agency did not extend to the exaction of any fees, except such as by law he was entitled to charge.

The protection of an agent does not extend to an illegal exaction by the agent, without express direction from his principal to require the specific payment, even if such express direction would protect him.

I think the judgment, upon the concessions made by the counsel respectively, should be affirmed.

Judgment affirmed, with interest and costs of appeal; total, $19 30.

Hora bx Reporter.—In Hovember, 1852, the plaintiff, Townshend, delivered to the defendant, who was the register of deeds of the city of Hew York, a written requisition “ to search the records in his office, and certify the title of Edward Wigfall, as it appears on and from said records, to the pieces of land hereafter described, and also to search and certify the incumbrances on said pieces of land.” A description of the property was written at the foot of the requisition. The register objected, on the grounds, among others, that the search was not in the usual form; that to make such a search would impose great labor upon him, and that the request ought to state the name of each party against whom the search was required, and the period during which the search was to be made. The plaintiff having applied to the Supreme Court for a mandamus to the register, Mr. Justice Roosevelt held, that the requisition was sufficiently specific; that a limited answer, covering the record title of Wigfall only, would be a legal compliance with it; and that; if the' appellant wished the title of Wigfall’s grantors, he must either direct a further search, or make an examination himself, which he might do as a right, without charge, or amend his present requisition so as to render it special and comprehensive enough to cover all points of inquiry within the range of the register’s office.