Section 1773 of the Consolidation Act (Laws of 1882, chap. 410), continued in force by section 1571 of the Greater New York charter (Laws of 1901, chap. 466, amdg. Laws of 1897, chap. 378), thus provides, in relation to the duties of a coroner’s physician: " When in the city of New York any person shall die from criminal violence, or by a casualty, or suddenly when in *45apparent health, or when unattended by a physician, or in prison, or in any suspicious or unusual manner, the coroner shall subpoena one of the coroner’s physicians, who shall view the body of such deceased person, externally, or make an autopsy thereon as may be required. It shall be the duty of the physician to whom such subpoena is so issued to make the inspection and autopsy required and to give evidence in relation thereto at the coroner’s inquest. The testimony of such physician, and that of any other witnesses that the coroner may find necessary, shall constitute an inquest.”
Plaintiff, in proceedings instituted by him to secure a writ of mandamus to compel the civil service board to certify his name as coroner’s physician in 1902, swore that “the duties of a coroner’s physician in the borough of Manhattan require that in the trial of cases of homicidal poisoning to testify to the cause of death and to every step in his examination and autopsy, and the performance of his said duties in connection therewith, and also that he testify as an expert witness on the part of the People to all quéstions of a medical, pathological and toxicological nature involved in each particular case. ” In my opinion he correctly set forth his duties therein, and it follows therefrom that when a coroner’s physician has performed an autopsy he must testify without compensation not only to the facts ascertained by him thereupon, but also as to all matters connected therewith, arising therefrom or in any way relevant to the cause of death, the condition of the body or of its organs or the.inferences to be drawn therefrom. As plaintiff originally performed an autopsy in both the Binge and Bauer cases, I do not believe he can recover for his services as expert therein.
In the Patrick case, however, he had never performed any autopsy on the body of the person murdered. His services were solely those of an expert pathologist, rendered at the request of the prosecuting officer of the county, who had the power to call in expert advice and assistance. The services were rendered in reference to a criminal prosecution, upon a motion for a stay of execution pending an application for a new trial based on certain claims as to the condition of the body of the victim. I do not believe that section 1533 of the charter of *46Greater New York prohibiting any officer of the corporation from being or becoming interested, directly or indirectly, “in, or in the performance of, any contract, work or business, or the sale of any article, the expense, price or consideration of which is payable from the city treasury” has any application to such a situation as this. That section was intended to prevent city officials from profiting from ordinary city contracts, or from dealing officially with concerns in which they were open or undisclosed partners. The scope of the section is sufficiently indicated by the remedy provided, which is, that at the option of the comptroller the contract may be forfeited. Nor do I believe that plaintiff comes within its inhibition, for he is not, in my opinion, an officer of the corporation. “The essential element in a public office is that the duties to be performed shall involve the exercise of some, portion of the sovereign power, whether great or small, * * * and it can hardly be contended that a clerk, performing routine duties in strict subordination to a public officer, and with no authority under the statute to do anything except where it is authorized and directéd by such officer, is exercising any of the sovereign powers.” (People ex rel. Corkhill v. McAdoo, 98 App. Div. 312.) It has been held that coroners themselves are not officers performing a duty imposed upon the municipality (People ex rel. Hillman v. Scholer, 94 App. Div. 286), and that the clerk of the board of coroners is not a public officer. (People ex rel. Hoefle v. Cahill, 188 N. Y. 489.)
The rendition of the services in question is not disputed, As plaintiff has recovered by the verdict of the jury the full amount claimed by him in each case, I am of the opinion that he is entitled to recover the full value of his services in the Patrick case only, viz.) $1,086.95, and that the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event, unless plaintiff stipulates to reduce same to $1,086.95, with costs, in which event it should be affirmed, as modified, with costs to the respondent, ■
Judgment and orders reversed and new trial ordered, with costs to appellant to abide event.