(dissenting) :
The plaintiff, a commissioner' of deeds, was employed as a clerk in the office of the commissioner of jurors, and while so employed, at a salary of $1,500 per year, he alleges that with the consent, if not at the request, of the commissioner of jurors, he took the affidavits *245necessary to the work of the office, and he claims in this action the right to collect the statutory fees for this work. The learned trial court granted the defendant’s motion for a nonsuit, and the plaintiff appeals to this court.
I am clearly of the opinion that the court erred in refusing to send this case to the jury; it cannot, I think, be distinguished in principle from the cases of Merzbach v. Mayor, etc., of New York (163 N. Y. 16) and Morgan v. City of New York (190 id. 237), where the rule is laid down that a notary public or a commissioner of deeds is entitled to his statutory fees for taking affidavits, unless it is understood that such services are to be rendered as a part of his services as clerk or employee of the department accepting such services.
The judgment appealed from should be reversed.
Rich, J., concurred.
Judgment affirmed, with costs.