Wardlaw v. Mayor of New York — 46 N.Y. St. Rep. 861

Majority

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Mary A. Wardlaw, Adm’rx, Resp’t, v. The Mayor, etc., of New York, App’lt.

(New York Superior Court, General Term,

Filed May 2, 1892.)

Headnote

1. Municipal corporations—Suspension of officer.

An assistant engineer in the department of public works cannot be suspended without pay, and the moneys earned by him in other employments during a suspension are not to be credited against his salary.

2. Same—City surveyor not an officer.

The position of city surveyor, to which no salary is attached and which does not become vacant by the death, removal or resignation of the incumbent, is not an office within the meaning of § 55 of the consolidation act, so as to make an acceptance thereof a vacation of another office held by such incumbent.

Appeal from judgment entered on a verdict directed by the court in favor of plaintiff, and from order denying defendant’s motion for a new trial.

The action was to recover $5,700 and interest, aggregating $6,821, for the salary of James R. Wardlaw, an “assistant engineer,” during the interim between the time of his suspension and discharge. The defendant concedes the appointment, the suspension and discharge, and the readiness of Wardlaw to perform his duties at all times. It claims, however, that because Wardlaw was appointed “ city surveyor,” in 1877, by a resolution of the common council, his attempt to hold the position of “ assistant engineer ” was the holding of two offices, which, under § 55 of the consolidation act,- prevents a recovery. Ths court directed a verdict in favor of the plaintiff for the amount claimed, and the defendant moves for a new trial.

The following is the opinion of the trial judge :

McAdam, J.—While the defendant might have discharged the

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decedent and relieved itself from liability, it could not suspend him without pay, Gregory v. The Mayor, 113 N. Y., 416 ; 22 St. Rep., 703 ; Émmitt v. Same, 38 id., 355, aff’d id., 907, and the moneys he earned in other employments during the suspension are not to be credited to the defendant. Fitzsimmons v. City of Brooklyn, 102 N. Y., 536 ; 2 St. Rep., 475 ; Lethbridge v. The Mayor, etc., 39 id., 385. There is nothing in the case which shows that the decedent abandoned or relinquished the office of assistant ■engineer, or in any manner discharged the defendant from its obligation to pay. The real question involved turns on whether the ■decedent, because he held the position of “ City Surveyor ” under a resolution of the common council, passed in 1877, held an office within the meaning of the prohibition contained in § 55 of the consolidation act, which made him ineligible to hold the position of “assistant engineer" under the defendant.

There is no express authority given to the common council to appoint city surveyors, and if the board possesses any power upon the subject it is by implication only. But that question need not be seriously considered, for it is apparent that the appointment is not an office within the meaning of § 55, supra. Office, in the sense there employed, embraces the idea of public station, tenure, emolument and duties, involving the right and •corresponding duty to execute some public trust. In re Hathaway, 71 N. Y., 238 ; People v. Duane, 121 id., 367 ; 31 St. Rep., 516 ; U. S. v. Hartwell, 6 Wall., 385 ; U. S. v. Germaine, 99 U. S., 508 . In legal contemplation an office is an entity and may exist though without an incumbent People v. Stratton, 28 Cal., 382 . It is an employment on behalf of government, in any station of public trust, not transient, occasional or incidental. It is where ■one has to do with another’s affairs against his will and without his leave. The position of city surveyor has no tenure or salary.. It does not exist independently of the incumbent and does not become vacant by his death, removal or resignation. It resembles that of licensee more than anything else.

Every office implies an authority to execute some portion of the sovereign power of the State, either in making, executing or administering the laws.- The question came up in this court when it held that Frederick Dwight Olmstead, in holding the position of landscape architect of public parks and ■ commissioner of state surveys, was not holding two offices within the meaning of the section referred to. ' ‘

The Court said: “One who receives no certificate of appointment, has no term or tenure of office, but performs such duties as are required of him by the persons employing him, and whose responsibility is limited to them, is not an officer and does not hold an office.” Olmstead, v. The Mayor, 42 Super. Ct., 488.

The court of appeals has held that the legislative prohibition to common council against creating new officers extends to clerks, but not to janitors and ordinary servants, for they are not officers. Sullivan v. The Mayor, etc., 53 N. Y., 652 ; Costello v. Same, 63 id., 48. The decedent, by reason of his position of city surveyor, was in no sense a clerk, city employee or public official, and did not

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come within the purpose and intent of the prohibition contained in § 55, supra.

“ The distinction," said the court in Olmstead v. The Mayor, supra, “ is plainly taken between a person acting as a servant or employee, who does not discharge independent duties, but acts by direction of others, and an officer, empowered to act in the discharge of a duty, or trust, under obligations imposed by the sanctions and restraints of legal authority in official life.” The verdict was properly directed, and the motion for a new trial must be denied.

William H. Clark, counsel to the corporation, and Sidney J. Cowen, for app’lt; L. Laflin Kellogg, for resp’t.

Curiam—The judgment and order should be affirmed, with costs, upon the opinion filed by the trial judge on denying, defendant’s motion for a new trial.

Sedgwick, Ch. J., and Freedman, J., concur.