In order that there may be an officer de facto, there must actually exist the office into which he can intrude. People ex rel. Sinkler v. Terry, 42 llun, 273; 5 St. Rep., 120; rev'd, 108 N. Y. 1; 12 St. Rep., 773.

The facts in People ex rel. Sinkler v. Terry, 108 N. Y., 1; 12 St. Rep., 773, were held to sufficiently establish that the person acting as a magistratewas an officer de facto.

Acts of such officers.-The general rule with respect to de facto officers is that the office is so far void as to prevent the officer from asserting it to his own advantage at the expense or to the injury of another, but is valid so far as to protect third parties from injury.. Adams v. Tator, 6 St. Rep., 359; 42 Hun, 384; People ex rel. Hopson v. Hopson, 1 Denio, 574; Weeks v. Ellis, 2 Barb. 320; Matter of Kendall, 85 N. Y., 302. In other words, the office is void as to himself, but valid as to strangers. Id.

An officer de facto cannot sue as such, but to maintain an action he must also be an officer de jure. Horton v. Parsons, 37 Hun, 42; aff'g Horton v. Carrington, 1 How. N. S., 124; People v. Nostrand, 46 N. Y., 375.

Village trustees de facto are capable of levying an assessment. Dows v. Irvington, 13 Abb. N. C., 162.

The validity of contracts, made by a de facto trustee of a school district, cannot be disputed by his successor in office on the ground that his predecessor was disqualified. Morrison v. Sayre, 40 Hun, 465.

The acts of a mere officer de facto, though his office affords no protection to himself, are valid as to the public and third persons. Hamlin v. Dingman, 5 Lans., 61.

In proceedings by mandamus to compel a highway commissioner to lay out a road, the fact that the original defendant was not a commissioner de jure, but only de facto, will not defeat the proceeding, where there is no question as to the title of the substituted defendant. People ex rel. Wells v. Brown, 47 Hun, 459; 14 St. Rep,, 457.

Strict proof.-Where a criminal endeavors to escape punishment on the allegation that the person acting as a magistrate was not elected because of 30me alleged technical defect in the ballots though he received a majority of all the votes, he should be held to strict proof of all the material facts. People ex rel. Sinkler v. Terry, 108 N. Y., 1; 12 St. Rep., 773.

See further Merritt v. Village of Portchester, 71 N. Y., 309; Matter of Kendall, 85 id., 302.

§ 44. Giving or offering bribes.-A person who gives or offers a bribe to any executive officer of this state with intent to influence him in respect to any act, decision, vote, opinion, or other proceeding as such officer, is punishable by imprisonment in a state prison not exceeding ten years, or by a fine not exceeding five thousand dollars, or by both.

This section relates to the bribery of an executive officer. People v. Sharp, 12 St. Rep, 217; 107 N. Y., 439; 5 N. Y. Cr., 572.

§ 45. Asking or receiving bribes.--An executive officer, or person elected or appointed to an executive office, who asks, receives or agrees to receive any bribe, upon an agreement or understanding that his vote, opinion or action upon any matter then pending or which may by law be brought before him in his official capacity, shall be influenced thereby, is punishable by impris onment in a state prison not exceeding ten years, or by a fine not exceeding five thousand dollars, or by both; and, in addition thereto, forfeits his office and is forever disqualified from holding anv public office under this state.

See notes under section 42, ante.

People v. Meakim, 133 N. Y., 221; 44 St. Rep., 751; 8 N. Y., Cr., 410; aff'g 61 Hun, 327; 40 St. Rep., 686.

§ 46. Attempting to prevent officers from performing duty. A person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, is guilty of a misdemeanor.

See sections 61, 62. 63 and 127 post.

The reference to this section in People v. Palmer, 5 N. Y. Cr., 110, should be to section 36, ante.

The crime of intimidating an officer involves the question of intent. Smith . Botens, 36 St. Rep., 55; 13 N. Y. Supp., 223. The word "intent" is clearly implied in this section. Id.

See People v. Hall, 31 Hun, 404; 2 N. Y. Cr., 134.

§ 47. Resisting officers.-A person who knowingly resists by the use of force or violence, any executive officer, in the performance of his duty, is guilty of a misdemeanor.

See section 124, post.

§ 48. Taking, etc., unlawful fees or reward for performing or omitting official acts, etc., felony. Punishment. A public officer, or a deputy, clerk, assistant or other subordinate of a public officer, or any person appointed or employed by or in the office of a public officer, who shall in any manner act for or in behalf of any such officer, who asks or receives, or consents or agrees to receive, any emolument, gratuity or reward, or any promise of emolument, gratuity or reward, or any money, property or thing of value or of personal advantage, except such as may be authorized by law for doing or omitting to do any official act, or for performing or omitting to perform, or for having performed or omitted to perform any act whatsoever directly or indirectly related to any matter in respect to which any duty or discretion is by or in pursuance of law imposed upon or vested in him, or may be exercised by him by virtue of his office, or appointment or employment, or his actual relation to the matter, shall be guilty of a felony, punishable by imprisonment for not more than ten years, or by a fine of not more than four thou sand dollars, or both.

Am'd by chap. 336 of 1890.

This amendment substituted the present, for the origir al, section, upon the same subject.

See section 557, post; section 1122 of Code of Civil Procedure.

A constable, who takes fees beyond the amount allowed by law, is indictable as for a misdemeanor. Parker v. Newland, 1 Hill, 87.

48a. Comptroller not to be interested in tax sales.The comptroller, or any person employed in his office, who shall be directly or indirectly interested in any tax sale made by such

comptroller, or in the title acquired by such sale, or in any money paid or to be paid for the redemption of any lands sold for taxes or on the cancellation of any tax sale; or any person who shall pay or give to the state comptroller, or to any employe in his office, any compensation, reward or promise thereof for any service or services performed or to be performed in regard to such sale, redemption, cancellation or such tax title, is guilty of a misdemeanor. A sale in violation of this section is void.

This section was added by chap. 672 of 1893.

$48b. Prison officers not to be interested in prison contracts. A superintendent of state prisons, or agent, warden or other officer, keeper or guard, employed at either of the prisons,

who

1. Shall be directly or indirectly interested in any contract, purchase or sale, for, by, or on account of such prison; or

2. Accepts a present from a contractor or contractor's agent, directly or indirectly, or employs the labor of a convict or another person employed in such prison on any work for the private benefit of such superintendent, officer, keeper or guard, is guilty of a misdemeanor, except that the agent and warden shall be entitled to employ prisoners for necessary household service.

This section was added by chap. 692 of 1893, and will go into effect October 1, 1893.

§ 48c. Appraiser taking fee or reward.-An appraiser appointed by virtue of the taxable transfers law, who takes any fee or reward from an executor, administrator, trustee, legatee, next of kin, or heir of any decedent, or from any other person liable to pay such tax, or any portion thereof, is guilty of a mis

demeanor.

This section was added by chap. 692 of 1893, and will go into effect October 1, 1893.

§ 49. Taking reward for omitting or delaying official acts. An executive officer who asks or receives any emolument, gratuity or reward, or any promise of any emolument, gratuity or reward, for omitting or deferring the performance of any official duty, is guilty of a misdemeanor.

$50. Taking fees for services not rendered-An executive officer who asks or receives any fee or compensation for any official service which has not been actually rendered, except in cases of charges for prospective costs, or of fees demandable in advance in the cases allowed by law, is guilty of a misdemeanor.

See section 48, ante.

§ 51. Taking unlawful reward as fee in extradition cases. An officer of this state who asks or receives any fee or compensation of any kind for any service rendered or expense in

curred in procuring from the governor of this state a demand upon the executive authority of a state or territory of the United States, or of a foreign government, for the surrender of a fugitive from justice; or for any service rendered or expense incurred in procuring the surrender of such fugitive, or of conveying him to this state or for detaining him therein, except upon an employ ment by the governor of this state, is guilty of a misdemeanor. Amende 1 by chap. 384 of 1882.

This amendment was made before the Code took effect.

See sections 836 and 837 of Code of Criminal Procedure.

The case of People ex rel. Gardenier v. Board of Supervisors, 17 St. Rep., 997; 2 N. Y. Supp., 351, was reversed in 56 Hun, 20; 29 St. Rep., 457; 8 N. Y. Supp., 752.

Object.-The purpose of this section, evidently, was to prevent abuses by officers of the state in seeking requisitions from the governor and in extradition proceedings instituted by it. People ex rel. Gardenier v. Board, etc., 131 N. Y., 1; 45 St. Rep., 316; aff'g 56 Hun, 20; 29 St. Rep., 457; 8 N. Y. Supp., 752.

A district attorney is forbidden from taking compensation for anything done in procuring from the governor a demand for the return of a fugitive. People ex rel. Gardenier, v. Board, etc., 56 Hun, 20; 29 St. Rep., 457; 8 N. Y. Supp., 752; rev'g 2 id., 353; 17 St. Rep., 987, and aff'd in 134 N. Y., 1; 45 St. Rep., 317.

Application. This section, so far as it relates to procuring from the gov ernor a demand upon other executive authority for the surrender of fugitives from justice, has reference legitimately to interstate extradition only. People ex rel. Gardenier v. Board, etc., 134 N. Y., 1; 45 St. Rep., 316; aff'g 56 Hun, 20; 29 St. Rep., 457; 8 N. Y. Supp., 752.

By the repeal of sections 836 and 837 of the Code of Criminal Procedure, and the substitution of the provisions of this section, the inhibition, in respect to incurring expense seems still to be confined to cases in which the demand for the surrender of the fugitive may be and is made by the governor, and to expenses incurred in the proceeding in that manner instituted. Id.

$ 52. Offering reward for appointments, etc.-A person who gives or offers to give, any gratuity or reward, in consideration that himself or any other person shall be appointed to a public office, or to a clerkship, deputation, or other subordinate position, in such an office, or shall be permitted to exercise, perform or discharge any prerogatives or duties, or to receive any emoluments, of such an office, is guilty of a misdemeanor.

Deputy sheriff.—An agreement by a deputy sheriff to allow to his principal a sum in gross not payable out of the profits of the office, and which may, therefore, exceed such profits, is a violation of the statute. Tappan v. Brown, 9 Wend., 175; Becker v. Ten Eyck, 6 Paige, 68.

When the sheriff, on appointing a deputy, takes an agreement for the payment of a gross sum, which is not to come out of the profits of the office, the contract is void. Mott Robbins, 1 Hill. 21; Becker v. Ten Eyck, 6 Paige, 68. But where he reserves a part of the fees of the office, or a sum certain, which is to come out of the profits, the contract is valid. Id.

But where a deputy, who is by law entitled to certain fees by virtue of his office, agrees to give a portion of such fees to the principal, it is a purchase of the office. Becker v. Ten Eyck, 6 Paige, 68; Tappan v. Brown, 9 Wend., 175.

Rival candidates.-Where two persons, who have applied for appointment for the same office, agree that, in consideration of the withdrawal and aid by one in procuring the appointment of the other, the fees and emoluments

of the office shall be divided between them, such contract is illegal and void. Gray v. Hook, 4 N. Y., 449. All agreements by which one person engages to pay another for his aid or influence in procuring an appointment to oflice, are, it seems, void. Id.

An agreement made between rival candidates for the same office, whereby one was to withdraw and run for another office, and the other was to pay al his past and future expenses, is illegal and void. Robinson v. Kalbfleisch, 5 T. & C., 212. A subsequent direction by the latter to expend money in fur the ance of such candidacy, and a promise to pay therefor, are also void. Id.

§ 53. Corrupt bargain for appointments, etc.-A person who asks or receives, or agrees to receive, any gratuity or reward, or any promise thereof, for appointing another person, or procur ing for another person an appointment, to a public office or to a clerkship, deputation, or other subordinate position in such an office, is guilty of a misdemeanor. If the person so offending is a public officer, a conviction also forfeits his office.

See notes under preceding section.

See notes under section 42, ante

See People v. Meakim, 133 N. Y., 221; 44 St. Rep., 752; 8 N. Y. Cr., 420; aff'g 61 Hun, 327; 40 St. Rep., 688; 15 N. Y. Supp., 918.

§ 54. Selling right to official powers.-A public officer who, for any reward, consideration or gratuity, paid or agreed to be paid, directly or indirectly, grants to another the right or authority to discharge any functions of his office, or permits another to make appointments or perform any of its duties, is guilty of a misdemeanor, and a conviction for the same forfeits his office and disqualifies him forever from holding any office whatever under this state.

See notes under sections 42 and 52, ante.

See People v. Meakim, 133 N. Y., 221; 44 St. Rep., 752; 8 N. Y. Cr., 420; aff'g 61 Hun, 327; 40 St. Rep., 688; 15 N. Y. Supp., 918.

§ 55. Such appointment avoided by conviction.—A grant, appointment, or deputation, made contrary to the provisions of either of the last two sections, is avoided and annulled by a conviction for the violation of either of those sections, in respect to such grant, appointment, or deputation; but any official act done before conviction, is unaffected by the conviction.

§ 56. Intrusion into public office.-A person who willfully intrudes himself into a public office, to which he has not been duly elected or appointed, or who, having been an executive or administrative officer, willfully exercises any of the functions of his office, after his right to do so has ceased, is guilty of a misde

meanor.

See section 1498 of Code of Civil Procedure.

The reference to section 56 in People v. Maschke, 2 N. Y. Cr., 306, note, should be to same section of Code of Criminal Procedure.

§ 57. Officer refusing to surrender to successor.-A person who, having been an executive or administrative officer,