#### The People of the State of New York ex rel. Lorenzo D. Hewitt, Appellant, *v.*William P. Hoyland, as County Treasurer of the County of Albany, N. Y., Respondent.

Third Department,

May 3, 1911.

Public officers — deputy sheriffs, Albany county — compensation. — mileage — Laws of 1909, chapter 519, construed.

Deputy sheriffs designated by the sheriff'of Albany county, pursuant to chapter 519 of the Laws of 1909, to attend trial terms of the Supreme and County Courts and receiving an annual salary, by virtue of a resolution of the board of supervisors, are not entitled to the mileage specified in section 3312 of the Code of Civil Procedure.

Appeal by the relator, Lorenzo D. Hewitt, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Albany on the 30th day of December, 1910, denying the relator’s motion for a peremptory writ of mandamus to compel the county treasurer to pay to the relator certain mileage.

*William E. Woollard [Michael D. Reilly*of counsel], for the appellant.

*Luther C. Warner [Ellis J. Staley*of counsel], for the respondent.

Smith, P. J.:

By section 343 of the Judiciary. Law (Consol. Laws, chap. 80; Laws of 1909, chap. 35) it is provided that in any county where the compensation of the attendants provided for in section 403 of ■ this chapter is now fixed by statute *12at the sum of three dollars per day and mileage, the number of attendants to he appointed for any one term of court pursuant to said section shall not exceed eighteen. By section 3312 of the Code of Civil Procedure it is provided that a deputy sheriff attending a sitting of a court of record, pursuant to a notice from the sheriff, is entitled to a fee for each day’s actual attendance to he fixed hy the hoard of supervisors “ and mileage as allowed hy law to trial jurors in courts of record.” By chapter 519 of the Laws of 1909 it was provided that the sheriff- of Albany county shall authorize and designate ten of his deputies, one from each town in said county, to attend all of the trial terms of the Supreme and County Courts held in said county, and that such deputies should receive such compensation as might he fixed and determined by the board of supervisors of said county. In that act it was provided “ that this act shall not operate either to increase or decrease the number of attendants upon said terms of court now provided hy law.” In pursuance of this act the board of supervisors passed a resolution that the deputies appointed, thereunder should receive *“*in addition to their fees in civil cases an annual compensation of $180, payable in monthly installments.”

This relator was one of the ten deputies appointed under the act of 1909. He has received his regular compensation at a rate of $180 per year. He. now claims that in addition to that compensation he is further entitled to the mileage specified in section 3312 of the Code of Civil Procedure. The Special Term has held otherwise, and with his decision we are in entire accord.

Under the provisions of the Judiciary Law cited, deputy sheriffs to the number of eighteen might be appointed by the sheriff to attend the terms of court in the county of Albany. The act of 1909, providing for the appointment of ten deputies to attend all of the terms of court and authorizing the board of supervisors to fix an annual compensation, in effect created two classes of deputies as court attendants — ten deputies appointed under this act and other deputies not exceeding eight, appointed under sections 343 and 403 of .the Judiciary Law. While the ten deputies appointed under the act of 1909 received the annual compensation specified by the board of *13supervisors, the other deputies received the compensation provided under section 3312 of the Code, which included a three-dollar per diem fee, as provided by the board of supervisors and the mileage of jurors. That the deputies to whom ah annual compensation is allowed are not entitled to mileage in addition thereto would seem to be a matter of first impression. Ordinarily a provision for annual compensation is not accompanied with any provision for additional fees for mileage. This general legislative plan is specifically expressed in subdivision 9 of section 240 of the County Law (Consol. Laws, chap. 11; Laws of 1909, chap. 16), which provides certain county charges as - follows: “9. The moneys necessarily expended by any county officer in executing the duties of his office, *in cases in which no specific compensation for such services is provided bylaw.”*Notwithstanding this general rule the Legislature may unquestionably provide for fees for mileage in addition to an annual compensation, but such an intention must be clearly indicated, and is not found in the case at bar. Section 3312 of the Code of Civil Procedure is in a title of the Code specifying *“*Sums allowed as fees.” By section 3307 the sheriff is entitled to certain “fees,” among which is six cents for each mile necessarily traveled, going and returning, to serve or execute a subpoena; for mileage upon an execution, for each mile traveled, going, ten cents; for attending a view, eight cents for each mile, going and returning, or for executing any mandate to put a person into possession of real property, except.as therein prescribed, “the same travel fees as upon the service of a summons.” It will thus be seen, that mileage allowed is just as much a fee as is specific compensation for service. If this be true the allowance of mileage is expressly excluded by section 3330 of the' Code of Civil Procedure, which provides: “The allowance of a fee by this title does not apply to a case where special provision is otherwise made by statute for compensation for a particular service.” These reasons lead to an affirmance of the order, with ten dollars" costs and disbursements. 1 ‘

All concurred; Betts, J., not sitting."

Order affirmed, with ten dollars costs and disbursements.