Opinion of MONELL, Ch. J. court recognizing the vesting the powers of government in the three departments-the legislative, executive, and judicial-held the judge of probate was a state and not a county officer; and the supreme court of the United States, in reviewing that decision (11 Wallace, 113), say that the judges are one of the means and instrumentalities for administering the government of a state. Judge NELSON says (p. 126), the question is whether the power to levy and collect taxes enables the general government to tax the salary of a judicial officer of the state, which officer is a means or instrumentality employed to carry into execution one of its most important functions, the administration of the laws. In Freedman v. Segel (10 Blatchford, 327), it was attempted to distinguished Day v. Buffington (supra), on the ground that the salary in the former was payable out of the city, and in the latter out of the state treasury. But Judge SHIPMAN says: "In both cases the judges exercise the judicial authority of the state, and represent its sovereignty in that behalf. The pay. ment of salaries out of local treasuries did not localize the courts. To assent to such a proposition would be to maintain that the sovereign power of a state depends upon the manner in which it exercises its discretion in the details of its administration and the distribution of its public burthens." The plaintiff in Freedman v. Segel was a judge of the superior court of this city, a court no less local than the common pleas. Of that court Judge SHIPMAN says: "It is clothed with no inconsiderable part of the general judicial power of the state, with more or only partial limitations as to the subject-matter of litigation." In Quin v. the Mayor, &c. (44 How. Pr. 266), the action was to recover the plaintiff's salary as a judge of one of the district courts of this city. In examining the act of 1871, as authorizing the board of apportion Opinion of MONELL, Ch. J. ment to regulate salaries of the officers of the local government, Judge FANCHER says: "It may be questioned whether the officers thus referred to include judicial officers. The term certainly does not include state officers, who derive their office from the general laws of the state, and whose duties are not by law limited to the city and county of New York." This case was affirmed by the court of appeals upon the opinion of Judge FANCHER (53 N. Y. 627). It is quite clear, I think, that the officers whose salaries were brought within the regulating power of the board of apportionment, were intended to be such as formed a part of the political government of the city and county, and who were connected with the executive or legislative departments, and not such as were a part of the judicial system of the state; otherwise, the legislature would not have limited it to officers of the government, but would have extended it to all officers whose salaries were paid out of the city or county treasury. But the limitation to the officers of those governments indicates sufficiently that it was not intended to cover officers of the state. The deputy clerk of the court of common pleas is appointed by the clerk, who receives his appointment from the court (Laws 1847, ch. 255, § 7), and is the custodian of its records and seal. He is a part of the incorporeal political being, which requires for its existence the presence of judges and a clerk. Therefore, if the court itself, or the judges of the court, are not within the act, it follows that neither the clerk nor his deputy is, or can be, affected by its provisions. A careful examination of the subject has satisfied me that the plaintiff is not, and was not, an officer of either the city or county governments, and therefore that the board of apportionment had no authority to reduce his salary. Appellants' points. The plaintiff must have judgment upon the demurrer, with costs. E. Delafield Smith, counsel to the corporation, and D. J. Dean, of counsel for appellants, urged :-The defendants argue, that the plaintiff is an "officer or employee of the city and county of New York." He is the deputy of the clerk of the court of common pleas, appointed by the clerk of that court, pursuant to Sec. 1 of ch. 198, Laws of 1854. The court of common pleas is a local court, through which the judicial authority of the state is administered within a designated locality. The judges of the court are public officers of the state; but the clerk and his deputies are not the depositaries or ministers of judicial power. Their duties are purely local, and concern only the government of the city and county of New York. The plaintiff, therefore, administering the duties of a local administrative office, within the city and county of New York, and receiving a salary from the treasury of the city and county of New York, is an officer thereof; and is comprehended within the intent and the letter of the statute, authorizing the board of apportionment to regulate all salaries of city and county officers. Elliot Sandford, attorney and of counsel for the respondent, urged:-I. Section three of chap. 583, Laws 1871, does not give the board of apportionment power to reduce the plaintiff's salary, because the office of deputy clerk of the court of common pleas is neither a city office nor a county office. The charters of the city enumerate the city departments and the city officers, but they contain no allusion to the office held by plaintiff, or to the court of which he is an officer (44 How. 266; 53 N. Y. 627; 2 Dillon on Corporations, & 772). II. The office held by plaintiff is a state office, and Respondent's points. be is a state officer (Opinion of FREEDMAN, J. in Jarvis v. The Mayor, &c., reported in "Register," April 21). The court of common pleas was re-created and reorganized, by a special and separate act, in 1821, and, by subsequent statutes, vested with general jurisdiction in law and equity. Any person in the state may be plaintiff. The only restriction on its jurisdiction is, that defendant must reside, or be served with process, in the city of New York. To remove all doubts, general power and jurisdiction were given in 1854 (History of the court by Chief Justice Daly, 1 E. D. Smith, lxxx. 3 Daly, Appendix). By the Revised Statutes (1. R. S. 95) the judges and clerk of this court are classed as judicial officers, under the title of "public officers of this state, other than militia" (ch. 5, title 1, part 1). III. State officers are not necessarily those whose duties extend over the whole state (Greaton v. Griffin, 4 Abb. N. S. 310; Russell v. The Mayor, 2 Denio, 472, 481, 483; Healey v. Dudley, 5 Lans. 115, 122; People v. Conover, 17 N. Y. 64, 67; Hayner v. James, 17 N. Y. 316). IV. The title of the act, ch. 583 is, "the act to make provision for the local government of the city and county of New York." The court of appeals decided in the case of Smith v. The People (47 N. Y. 330), what the words "local government of the city of New York" mean. Judge ALLEN says (p. 337), speaking of the title of chap. 137, Laws 1870, which is an act to reorganize the local government of the city of New York," and known as the charter of 1870: "The title of the act is local, relating solely to the political organization of the city. It does not indicate an intent to reconstruct or interfere with the organization of the criminal courts of the city, and the act in all its provisions adheres to the title." The same principle is laid down in Huber v. The People (49 N. Y. 132). Section 9 of chap. 382, Laws of 1870-the county tax Statement of the Case. levy-making further provisions for the government of the county of New York, giving power to the comptroller to appoint and remove attendants on courts, has been declared void by two general terms of the supreme court, because in violation of the local act clause of the constitution (Brennan v. The Mayor, &c., not reported; Opinions by INGRAHAM, P. J., and BRADY, J., 47 How. 178). It is obvious, therefore, that the words "local governments of the city and county of New York" do not include the courts. Per Cur.-The judgment is affirmed, with costs, upon the opinion delivered by Judge MONELL in the case at special term. CAROLINE POLLOCK, PLAINTIFF AND APPELLANT, v. MATTHEW T. BRENNAN, SHERIFF, &c., DEFENDANT AND RESPONDENT. I. SHERIFF-TRESPASS AGAINST FOR LEVYING ON GOODS CLAIMED TO BE OWNED BY A. UNDER AN EXECUTION AGAINST B. 1. EVIDENCE AS TO OWNERSHIP. a. Proof that A. bought the goods of H. at a time when he was sole owner thereof, is not decisive on the issue of A.'s ownership. 1. If A. in fact acted on behalf of B. in making the pur- b. Proof that A. had means and B. had none, is admissible. are proper. c. PROOF AS TO WHO WAS IN POSSESSION. 1. Proper on the question of ownership. 1. Question designed to call out such proof. The deputy-sheriff who made the levy was asked, "if he |