' The plaintiff, who was a salaried employee in the office of the district attorney of Hew York from about January 1, 1884, to December 31, 1890, brings this action to recover notary fees for administering oaths or affirmations, and taking acknowledgments required to be taken in the discharge of official duties imposed upon the district attorney, and at his request.
The period covered by plaintiff’s claim extends from July 11,. 1885, to December 31, 1890, and the notarial fees, at the rate provided by statute, aggregates the sum of $375.02, or an average of about twenty-two cents per day. Prior to June 11,1885, the plaintiff performed services as a notary public in the office of the district attorney, and he presented a bill for such services to the Comptroller, which was disallowed. Thereafter, he kept an account of every service rendered by him as-a notary public, whether administering oaths or taking acknowledgments,' and, after his employment ceased, which was December 31, 1890, he presented a bill to.the comptroller for such services, and, that officer having refused to pay his claim, he commenced this action. That, as notary public, he administered the oaths and took the affidavits and acknowledgments-for which he seeks recovery, is not questioned. And that the dis*190trict attorney had the authority to incur these expenses in behalf of ■the county, and that all such expenses were chargeable against the People by the corporation of the city of. Hew York, is conceded. The answer, among other things, alleges as a defense, that the plaintiff was an employee in the office of the district attorney, and what•ever services,, if any, were rendered by the plaintiff, were rendered voluntarily and without any agreement that the plaintiff was to receive ■compensati on .therefor. The record contains evidence tending to show that the plaintiff’s services as notary public were rendered voluntarily ; but, because of testimony to the contrary on the part of the plaintiff, it cannot be held, as matter of law, that the services thus rendered were voluntary. The plaintiff testified that in May or June, ■1885, he told Mr. Martine, then district attorney, that one of the bills for notary fees that he had marked .correct had been rejected by the comptroller, and the district attorney answered me, “ I ought to get paid. You are entitled to it.” He also testified to a conversation with District Attorney Fellows, in the latter part of Í889, in which plaintiff requested him to O. K. one of his bills, and said that he then handed it to the district attorney’s private secretary to send over with other bills to the comptroller’s office. And again, “I told Ool. Fellows once I- would keep an account. He didn’t ¡answer me ; it was after that that he O. K.’d one of the bills for me; I rendered bills for.those services.” Further reference to the evidence is unnecessary, as it already appears that there was sufficient ■evidence tending to show that the rendition of notary services by the plaintiff was not intended by him to be voluntary, and that District Attorneys Martine and Fellows so understood it, as to pre¡sent a question of fact for the jury.' It should b.e said in passing that District Attorney Fellows denied having. O. K.’d any bill for the "plaintiff, and that he understood that the services were rendered voluntarily and because of the fact that the plaintiff was receiving a salary as an employee in the district attorney’s office. If the question had been submitted to the jury whether the services were rendered voluntarily, a verdict for the defendant could not now be disturbed; but instead the jury was instructed as follows :
“ If you find, as matter of fact, that the plaintiff was requested by the district attorney to take these affidavits and acknowledgments, •and that it was either" expressly or impliedly agreed that he should *191be compensated for his services in addition to the salary he received, you may find a verdict for the plaintiff.
“ If, on the other hand, yon find that there was no such understanding, express or implied, it will be your duty to find a verdict in favor of the defendant.”
The court also charged the jury that the burden was upon the plaintiff on all the issues. The jury were, therefore, instructed in effect that the burden was on the plaintiff to establish that there was an understanding, express or implied, that the plaintiff should be compensated for his services as notary in addition to his salary as employee. The instruction of the court would undoubtedly be correct if the services of the plaintiff were incidental to his services as messenger, or were part of his duties as messenger; but the plaintiff testified as to what constituted the duties of messenger, as he was advised by the district attorney, and his testimony in that respect is not contradicted. The rule laid down by the court would also be correct, if the plaintiff had been requested to render services other than those belonging to his duties as messenger, provided he was not called upon, in the doing of it, to perform a duty incident to some other public office held by him. The plaintiff, in addition to being a messenger in the district attorney’s office, held a public office, to wit, that, of notary public. That office lie obtained, not from the district attorney, but by an appointment from the Governor. The statute fixes the fee which, as notary public, he was entitled to receive for administering an oath or affirmation, and for taking an acknowledgment. His right to compensation for services as notary public did not grow out of any contract, but was an incident of his office, and arose from the rendition of the services. The plaintiff could voluntarily perform the duties as notary public for his employer, but it cannot be assumed that he did so — it must be proved. When requested to administer an oath or take an acknowledgment he became entitled, after the rendition of the services, to the fee which the statute provides. The principles governing contracts, express or implied, have no application to such a situation, and the party receiving the benefit of official services of such a character cannot successfully resist payment by asserting that it was not expressly or impliedly agreed or understood that the .officer should be compensated for his services. ¡Nor can a jury be permitted to *192speculate that, because of the friendly or other relations between the parties* the person seeking the services of the notary did not expect to pay him, and that, therefore, there was no contract, either express or implied, that he should. Undoubtedly a notary may voluntarily waive his right to the fees which the statute gives him, and if he does so he cannot afterwards reconsider and recover them. The only proof which he needs to make in order to establish his right to recover fees for services rendered as a notary, is tó show the rendition of the services upon the. request of the party from whom recovery is sought, It will constitute a defense to show that the services were voluntarily rendered, but the burden is upon the defendant to establish it. The plaintiff,, in this ease, excepted to an instruction, in substance, that the burden was upon the plaintiff to show that it was either expressly or impliedly agreed that he should be compensated for his services as notary public. .This exception was well taken.
The judgment should be reversed and a new trial granted,' with costs to abide the event. .
Williams, J., concurred.
Judgment affirmed, with costs.