The applicant was a captain of the police force. On the 28th of December, 1896, charges were preferred against him by the board of .police commissioners upon which he was brought to trial.. The charges were dismissed, and he makes this application under chapter 700 of the Laws of 1899 for the appointment of a referee to fix the amount' of counsel fees and expenses to which he was put in defending himself from those charges and to require the city of New York to pay it. His application was denied, and from the order denying it this appeal is taken.
The act in question applies in terms to proceedings commenced within any city or county to remove an officer of that city of county, or to convict him of any crime in the commission of his official duties. Without considering the very serious question whether the applicant here can be said in any sense to be an official or officer of the city or county of New York, or the other serious question, whether these charges were brought against him for the purpose of removing him from his office, it is sufficient to say that the case in principle cannot be distinguished from Matter of Straus (44 App. Div. 425) and Matter of Jensen (44 id. 509), in which, cases it was held that, in so far as this statute attempted to impose a liability upon any- city or county for something which was not a city or county purpose, it was beyond the power of the Legislature and-was, therefore, unconstitutional. The question was sufficiently discussed in those two cases to express the reasons upon which the conclusions of the court were reached, and it is unnecessary to repeat them in this connection. . _
• For those reasons the order of the court below was correct and must be affirmed, with costs and disbursements as of an action.
Van Brunt, P. L, O’Brien, Ingraham and Hatch, JJ., concurred.
Order affirmed, with costs and disbursements as of an action.