The People ex rel. Graham agt. Northrop.

the resolution which I am considering, and their opinion is entitled to much consideration.

The learned judge who decided this case at the special term, thinks that the requisition that the payment must be made upon the certificate of the auditor, implies that he is to pass upon the items or particulars of an account which must be of actual expenses. He refers to the sections of the ordinance relative to the duties of the city officers, which requires the auditor to make entries in his books, showing the date and items of each claim, and to examine such items. As the duty was imposed by an ordinance of the common council, it was competent for the same body to modify or dispense with it in any particular instance. If, therefore, the resolution in question had required any official act, essentially variant from the general ordinance, that would not have rendered such resolution nugatory. But it did not require any essential change from the ordinary duties of the auditor in this respect. He can still make the requisite entry in his official books, show ing the date and only item in each monthly account, and he can and should examine the item to see that it corresponds with the allowance specified in the resolution. He can also, I think, require evidence that the commissioner has kept a horse and wagon, and employed it in the public service during the time for which the charge is made. And then he will have done all which the city ordinances require of him, antecedently to his signing the usual certificate. It cannot be supposed that the common council ever designed to authorize this, its inferior officer, to vary the rate of compensation fixed by its own resolution. If the rate should not be fixed directly by the common council, it might be, and frequently (if not usually) is, by a contract made upon an advertisement for bidders or proposals. In such cases contractors are often paid (to use a familiar phrase) by the job. When their claims, in such cases, are presented to the auditor, all that he has to do is to ascertain that the work has been properly performed. He could not be expected to, nor could he be legally required to inquire and determine whether the rate of compensation

Fisher agt. Hunter.

was exorbitant or reasonable. It seems to me, therefore, that the mere fact that a certificate from the auditor is required as preliminary to the payment of an account, does not necessarily raise an inference that there must be items of actual expense, rather than a fixed sum which can be neither exceeded nor diminished.

The requisite facts to establish these accounts were admitted. The auditor placed his refusal to certify the bills on untenable grounds, and claimed a discretionary power when he had none. It is, therefore, a proper case for a mandamus.

The judginent at the special term must be reversed, and there must be a peremptory mandamus, but without costs.

SUPREME COURT.

THOMAS FISHER agt. WILLIAM HUNTER.

In the taxation of costs, the general principle is, that a party who recovers costs is entitled to have the amount fixed according to the fee bill in force at the time of the recovery. Therefore, an action decided in June, 1857, when the party became entitled to costs, properly came within the amendments of the Code as to costs, which became operative in May, 1857.

By the 8th subdivision of § 307 of the Code, (amended in April, 1857, and stands as sub. 7,) it is provided that a fee of $10, shall be allowed to the prevailing party for every circuit or term at which the cause is necessarily upon the calendar, and is "not reached or postponed." These words, "not reached or postponed," have been regarded as very much of a puzzle. The grammatical construction undoubtedly is, neither reached nor postponed. But the practical construction to be given to these words should be that the successful party is entitled to this fee for attending the circuit prepared for trial, when without his own default, he had failed in trying his cause, as was held in Sipperly agt. Warner, (9 How. 333,) and Shufelt agt. Power, (13 id. 89.) That is, it might happen that the cause would not be reached; then the party finally successful should have his fee. It might happen that being reached, he could not try it. The court might refuse to try it. The parties might, for their mutual convenience, agree to postpone or refer it. If so, if the cause is postponed in either form, and the costs of the circuit or term are not otherwise provided for by the terms of postponement, the calendar fee is allowable.

Fisher agt. Hunter.

Albany Special Term, June, 1857.

MOTION for retaxation of costs.

THE action being at issue, was upon the calendar for trial, at the Albany circuit, in November, 1856. After the commencement of the circuit, and before the cause was reached upon the calendar, it was referred by consent of the attorneys for the parties respectively. The trial before the referee commenced before the amendments to the Code adopted in 1857, took ef fect. The referee made his report in favor of the defendant, on the 8th day of June. Upon the taxation of the costs, the taxing officer allowed the defendant $10, for a calendar fee at the November circuit, when the cause was referred, and allowed for services at the increased rates prescribed by the amendments of 1857. These allowances were objected to, and the objections having been overruled, the plaintiff moved for a retaxation.

ISAAC LAWSON, for plaintiff.

LAYFAYETTE D. HOLSTEIN, for defendant.

HARRIS, Justice. The general principle applicable to questions like this, is, that a party who recovers costs, is entitled to have the amount of such costs fixed according to the fee bill in force at the time of the recovery. The amendments of the Code adopted by the legislature of 1857, became operative in May. This action was decided in June. It was then that the defendant first became entitled to costs. The new fee bill was then in force, and the clerk properly taxed the costs, according to the rates prescribed by the last amendment.

The effect to be given to the words "not reached or postponed," in the 8th subdivision of the 307th section of the Code, has been regarded as very much of a puzzle ever since the Code was adopted. When it is said that a fee of ten dollars, shall be allowed to the prevailing party for every circuit or term at which a cause, though upon the calendar, is not reached, the meaning is sufficiently obvious. The difficulty is, to determine what was intended, when the legislature added the

Fisher agt. Hunter.

words, "L or postponed," or as it stood before the amendment of 1852, "or is postponed." The plaintiff's counsel supposes that the fee is only allowable in cases where the cause is neither reached nor postponed. He insists that if a cause, though not reached, is put over the circuit, the fee is not taxable. This is, perhaps, the grammatical construction of the language, as it now stands. But I think the better and more practical construction to be given to these terms is that adopted in Sipperly agt. Warner, (9 How. 333;) and Shufelt agt. Power, (13 How. 89.) I think it was intended to give the successful party this fee, for attending the circuit prepared for trial, when without his own default, he had failed in trying his cause. It might happen that the cause would not be reached. Then the party finally successful should have the fee. It might happen that being reached, he could not try it. The court might refuse to try it. The parties might for their mutual convenience agree to postpone it. If so, if the cause is postponed and the costs of the circuit or term are not otherwise provided for by the terms of postponement, I think the calendar fee of $10 is allowable to the prevailing party.

In this case, the parties attended the circuit for trial. For their mutual convenience, and by mutual consent, it was postponed by the agreement to refer. The prevailing party upon the trial, thereby became entitled to the costs of that circuit, including the fee allowed by the 8th subdivision of the 307th section. The motion must, therefore, be denied, but without costs.

The People ex rel. Wildey agt. Stout, County Treasurer.

SUPREME COURT.

The People ex rel JOHN WILDEY, JUN. agt. ANDREW V. STOUT, County Treasurer.

The laws of 1853, (Session Laws of 1853, ch. 610,) totally repeals the act of 1847, so far as it affects the register of the city and county of New-York, thereby abrogating the salary of that officer, and payment of fees to the county treasurer, and reinstating the office to its former condition, prior to 1847, by the receipt of fees as a compensation to the register, and for the expenses of his office. Held, therefore, that the amount of compensation claimed by an engrossing clerk in that office, during the year 1854, was not a legal claim against the city or county, although audited and allowed by the board of supervisors. His only claim was against the register who employed him.

New-York Special Term, March, 1857.

AN order to show cause why a peremptory mandamus should not issue, was granted in this case, on the 16th of March, 1857, from which it appears that the relator was employed as an engrossing clerk in the office of the register of the city and county of New-York, during the year 1854. His bill for his services amounting to $339.75, was not paid by the register, and he applied to the board of supervisors to pay it. It was audited and allowed by the supervisors, and upon presentation of the bill to the county treasurer, he declined paying it, and for cause now states, that the claim is not a county charge and was improperly allowed as such by the supervisors.

WILLIAM R. STAFFORD, for relator.

M. V. B. WILCOXSON, for the county treasurer.

DAVIES, Justice. Previous to the act of 1847, (L. 1847, ch. 432,) the register took to his own use all the fees of his office, and paid all the expenses thereof; the act of 1847 substituted for his compensation a salary of $2,500, and directed that all fees received should be paid into the city treasury. Section 16 of this act directs the comptroller to pay the expenses of