Reilley v. Mayor of New York — 32 N.Y. St. Rep. 861

Majority

p. 861

James Reilley, App’lt, v. The Mayor, etc., of New York, Resp’t.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

Municipal corporations — Subpoena server a county officer within chap. 585, Laws 1871.

A subpoena server to the district attorney of New York is an officer of the city and county within the meaning of chap. 583, Laws 1871, authorizing the board of apportionment to fix the salaries of such officers.

Appeal from a judgment entered upon a verdict directed for the defendant at circuit.

Plaintiff was appointed a subpoena server in the office of the district attorney of New York by the district attorney on January 1, 1868. His salary was originally fixed at $1,300 per annum. By act of the legislature, entitled chapter 382 of the Laws of 1870, it was increased to $2,000 per annum to date from January 1, 1870. Plaintiff was paid his salary at the rate of $2,000 per annum from January 1, 1870, to July 1, 1871. By act of the legislature, entitled chapter 583 of the Laws of 18'Tl, a board of apportionment was created for the city and county of New York. This board, by resolution adopted on June 19, 1871, reduced plaintiff’s salary to $1,300 per annum, to take effect July 1, 1871. The plaintiff was paid for his services as subpoena clerk from July 1, 1871, to January 1, 1872, at this rate of $1,300 per annum, instead of $2,000 per annum, and accepted these payments, from month to month under protest. This action was brought to recover the difference between the amount so received by the plaintiff and the amount claimed to be due him at the rate of $2,000 per annum, from July 1, 1871, to January 1, 1872.

This cause was twice tried; on the first trial a verdict was directed for plaintiffs, and, upon the second trial, verdict was directed for defendant, and from the judgment entered thereon this appeal is taken.

J. Henry McCarthy, for app’lt; J. J. Townsend, for resp’t.

We are unable to see any distinction between the case at bar and the case of Dolan v. The Mayor, 6 Hun, 506 .

The attempt to show that the resolution of the board of supervisors adopted 20th December, 1864, did not create the office of subpoena server to the district attorney in no manner distinguishes-the case at bar from the one cited.

p. 862

It is true that there is evidence that the district attorney, prior to the adoption'of this resolution, employed subpoena servers, but the authority under which such employment was made by the district attorney nowhere appears.

From the recitals of the resolution of the 20th December, 1864, it would however appear that such employment had been sanctioned by the resolution of the board of supervisors previously adopted, and which were repealed by the resolution of the 20th December, 1864.

In any event we are pointed to no authority authorizing the employment of the plaintiff by the district attorney, except the resolution of the 20th of December, 1864.

Under these circumstances the facts of the case at bar are precisely the same as those in the case cited, and that decision must control.

The judgment should be affirmed, with costs.

Bartlett and Barrett, JJ., concur.