Morgan v. City of New York — 105 A.D. 425

Majority

p. 425

George Morgan, Respondent, v. The City of New York, Appellant.

Headnote

A claim against the city of New York for affidavits taken by the chief messenger of the bureau of buildings before business hours is not enforcible.

The chief messenger in the bureau of buildings in the city of New York who, in ■ his capacity as a commissioner of deeds, takes affidavits in the performance of his duties as chief messenger, which duties were charged upon him by special direction and performed as service required by the department, cannot recover from the city of New York fees for taking such affidavits, notwithstanding that the affidavits were taken before business hours.

Appeal by the defendant, The City of Few York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 20th day of December, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of December, 1904, denying the defendant’s motion for a new trial made upon the minutes.

p. 426

The action is brought by the plaintiff, the chief messenger in the bureau of buildings in the city of New York, to recover fees as a commissioner of deeds for taking affidavits at the alleged instance and request of the defendant.

Theodore Connoly, for the appellant.

Augustin Ledwith, for the respondent.

The facts in this case cannot distinguish it from the case as made in McCabe v. City of New York ( 77 App. Div. 637 ; affd. by the Court of Appeals, 176 N. Y. 587 ). The fact that the affidavits were taken in the morning before business hours does not change the result any more than the rendition of other services charged upon the plaintiff performed either before or after office hours would authorize extra compensation. What plaintiff did was done in the performance of his duties as chief messenger. They were charged upon him by specific direction, and he performed them as service required by the department and in the discharge of his duties.

The judgment and order should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event. .

Patterson, O’Brien and Lauqhlin, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.