Quintard v. City of New York

Mr. Quintard sues the city of New York to recover 11 months’ salary as assistant corporation counsel at the rate of $2,500 a year. He was never appointed assistant corporation counsel by any one, but he claims to have become such by operation of law, and particularly by virtue of section 1536 of the Greater New York charter. His claim of title is made out in this way: In 1890, by a resolution of the board of charities and corrections of Kings county, he was appointed counsel to the board. By chapter 954 of the Laws of 1895, consolidating the county of Kings and the city of Brooklyn, the department of charities and corrections of the county was continued as the department of charities and corrections of the city, with, the same powers, duties, and authority as the department and commissioners should possess at the time when the act took effect. After the city and county were thus united, Mr. Quintard continued to -act as counsel for the department, and was so acting when the Greater New York charter went into operation, on January 1, 1898. By section 1536 of the charter, the mayors of New York, Brooklyn, and Long Island City, the chairman of the board of supervisors of Richmond county, and the county judge of Queens county were empowered to prepare and adopt a plan of transfer which should “provide for the apportionment between the several public departments, bureaus and offices, and the assignment to service in said public departments, bureaus and offices respectively, so far as practicable, of all of the subordinates and employés in every branch of the public service in each of the several municipal and public corporations hereby consolidated, in such manner that each person shall be assigned, as nearly as may be, without prejudice or advantage to perform the same service and in the same part of the city, and to

It seems to me tolerably clear that the plaintiff did occupy a position within the purview of section 1536 of the charter. The law under which the board of charities and corrections of the county of Kings was established (chapter 284, Laws 1880) authorized the -board to “appoint and remove from time to time storekeepers and all other officers, subordinates and assistants necessary for the proper discharge of their duties under this act and by law, and who shall hold their positions during the pleasure of said board.” This language is broad enough to warrant the employment of counsel, either temporarily, as the necessity for his services might arise, or permanently, at a fixed ■ rate of compensation. When the city of Brooklyn and county of Kings were consolidated, and both municipal corporations were known as the “City of Brooklyn,” the act of consolidation expressly continued the department of charities and corrections, with, the same powers, duties, and authority as it then possessed. It therefore retained power to continue the employment of counsel. It is suggested in' the brief for the city that, inasmuch as. the charter of Brooklyn gave the management and control of all the law business of the corporation and the departments thereof to the department of law, the effect of the act of consolidation was to deprive the department of charities and corrections of the authority which it had previously exercised of appointing or employing Its own counsel. I can find nothing in the act of consolidation, however, which gives any support to this proposition. Indeed, there is no mention of the Brooklyn charter in the act.

Coming down to the time when the Greater New York charter took effect, we find Mr. Quintard occupying the position of counsel to the department of charities and corrections of the city of Brooklyn. Whether he was an officer or not, it seems to me that he was a “subor

If I am right thus far, Mr. Quintard was entitled to recognition and assignment to duty in the law department of the city of New York, in the borough of Brooklyn, corresponding, as nearly as might be, with the work which he had previously performed as counsel to the department of charities and corrections. Under these circumstances, if he had applied for reinstatement in such position, he would have been entitled to enforce his demand by mandamus proceedings. See People v. Cram, 32 App. Div. 414 , 53 N. Y. Supp. 110 . But he did nothing of the kind. He performed no service for the city during the 11 months for which he seeks compensation, and the question is whether, under these circumstances, he can recover anything by way of salary. The argument in behalf of the city upon this branch of the case is that if the plaintiff was not a public officer he could not be paid, because he did not work; and if he was not a public officer prior to the adoption of the plan of transfer, he was not made such by that plan.

The distinction between an officer and a mere employé in respect to the right to recover compensation, when no duties have actually been performed or services have actually been rendered, has frequently been recognized by the courts. The officer is entitled to his salary as an incident of his office, and may recover it when improperly withheld. Fitzsimmons v. City of Brooklyn, 102 N. Y. 536 , 7 N. E. 787 . The employé, on the other hand, cannot enforce a claim to be paid except for services actually performed. Cook v. Mayor, etc., 9 Misc. Rep. 338 , 30 N. Y. Supp. 404 , affirmed in 150 N. Y. 578 , 44 N. E. 1123 . In Emmitt v. Mayor, etc., 128 N. Y. 117 , 28 N. E. 19 , the plaintiff was held to be entitled to receive the compensation prescribed for an inspector of masonry by the aqueduct commissioners, because such inspectorship was an office to which the right of compensation attached after the amount thereof had been fixed. The incumbent was said to be “more than a mere ordinary employé or laborer engaged by the commissioners.” And so in Smith v. City of Brooklyn, 6 App. Div. 134 , 39 N. Y. Supp. 990 , an assistant sanitary inspector in the department of health was declared to be “not a

Judgment affirmed, with costs. All concur.