Majority
p. 238N. Y. COMMOM PLEAS. Michael Sullivan agt. The Mayor, Aldermen and Commonalty of the City of New York. Special Term, October, 1874.
Headnote
Janitor of a district court not an officer.A. janitor of a district civil court in the city of New York is not an officer, but an employe.
■Consequently where such janitor received his appointment from the common council and his compensation was fixed by them, the board of estimate and apportionment cannot change it by a resolution under the charter of 1873.
The plaintiff was appointed janitor of the sixth district civil court of the city of Mew York, in 1870, and his compensation fixed by the common council.
In December, 1873, the board of estimate and apportionment passed the following resolution:
“ Besolved, That under the authority conferred upon the board by section 97 of chapter 335 of the Laws of 1873, this board do now fix the salaries of the janitors of district courts at the sum of $1,200, each, per annum, to take effect January 1st, 1874.”
Payment at that rate was offered by the defendants and received by the plaintiff, under protest, and action was brought to recover the balance. The defendants answered, setting up the resolution of the board, and plaintiff demurred to the answer as not stating facts sufficient to constitute a defense.
Elliott Sandford, attorney for plaintiffs.
p. 239Section 97 of the charter relates to city officers, such as aldermen. The plaintiff is not an officer, he is an employe ( 53 N. Y., 652 ). That decision is conclusive in this action ( 4 N. Y., 71 ).
E. Delafield Smith, for defendants.
— In the case of Costello agt. The Mayor, &c., of The City of New York,[1] I have recently held that a clerk employed by the common council is not an officer. A person who does not discharge independent duties, but acts by direction of others, and has no power to bind by his own acts, is not an officer (see cases cited in Costello case ; The King agt. Dr. Burnell, Carthew, 478; 1 Dillon’s Municipal Corporations, 146; 2 Harrington, 294 ; 3 Yeates, 300 ).
The demurrer is sustained, with leave to defendants to amend on payment of costs.
* Which has been recently affirmed by the general term.