Myers v. Mayor of New York — 53 N.Y. St. Rep. 233

Majority

p. 233

Charles Myers, Adm’r, Resp’t, v. The Mayor, etc., of the City of New York, App’lt.

(Supreme Court, General Term, First Department,

Filed May 12, 1893.)

Headnote

1. New York City—Inspector of regulating streets not a public officer.

An “ inspector of regulating and grading the streets in the city of New York ” is not a public officer, but an employe of the department of public works, serving for daily wages, and dischargable at the commissioner’s pleasure.

8. Same.

Such person is not entitled to pay from the city while unemployed, though wrongfully removed dr superseded by the commissioner.

3. Same—Veterans.

Chap. 119, Laws of 1888, regarding the removal from a position held by appointment in a city of an honorably discharged soldier, does not apply to an employe of the department of public works of New York city, serving for daily wages.

p. 234

Appeal from a judgment entered by direction of the court in an action to recover wages.

The plaintiff’s intestate served in the United States navy from 1857 to March 15,1864, when he was honorably discharged. In October, 1886, he was employed by the department of public works as an inspector of regulating and grading the streets of the city, at the rate of three dollars per day, and continued to act in that capacity until April 6, 1889, when he was suspended by the commissioner of public works, by a communication qf which the following is a copy: “ You are hereby suspended from the position of inspector of grading, etc., in this department, without pay, from this date.’’ He received his pay to April 6, 1889, and after-wards, from time to time, reported to the department that he was ready and willing to discharge the duties of the place, until July 11,1889, when he sent to the department a formal resignation of the position. Between April 6 and July 11, 1889, another person discharged the duties which the intestate had previously discharged, andón the same work, audit appears that during this time the decedent was not employed by the department; that he sought other work, and was unable to find employment. Between these dates there were seventy-eight working days, the wages for which amounted to $234, to recover which, with interest, this action was brought, and for which sum a verdict was directed, and on which a judgment was entered. This action has been twice tried. On the first trial in March 1891, the complaint was dismissed, and a judgment entered, which was reversed by this court in May, 1892. 46 St. Rep., 130 . In June following Myers died, and afterwards letters of administration were duly issued on his estate to the present plaintiff, in whose name this action was duly revived and continued. On the second trial the evidence taken on the first was read, no other or additional evidence being received or offered.

William H. Clark (William A. Sweetzer, of counsel), for app’lt; William W. Jenks, for resp’t.

A public officer cannot, without his assent, and in the absence of statutory authority, be deprived of the salary attached to his office by being suspended or prevented by his official superiors from temporarily discharging the duties of his office. So long as he remains a public officer, his right to the sailary attached to the office exists. Nothing short of removal from, or abandonment of, his office bars this right. Gregory v. Mayor, 113 N. Y., 416 ; 22 St. Rep., 703 . The view we take of this case renders it unnecessary to determine whether the power to remove an officer includes the power of suspending him. For a discussion of this question see Gregory v. Mayor, supra, and Emmitt v. Mayor, 128 N. Y., 117 ; 38 St. Rep., 907 , and the cases cited in Throop Pub. Off., §§ 401-406, inclusive. The right of the plaintiff to recover depends upon whether his intestate was a public officer of the city, or a mere employe of the department of public works. In this state public offices can be created only by the lawmaking power, the legislature, or by some public body or

p. 235

hoard to which the power to make local laws or regulations has heen delegated pursuant to the constitution. Ho such office as “ inspector of regulating and grading the streets in the city of Hew York” has been created by the statutes of this state, nor by any law or ordinance of any public board or body authorized to legislate for the city in respect to its local affairs. Such an office is not mentioned in the consolidation act, chapter 410, Laws 1882, nor do we find any authority therein for the creation of such an office by any board or body existing by virtue of that act. Moreover, the evidence does not show that any body, board or officer has attempted to establish such an office. Section 54 of the consolidation act provides:

“ Every person elected or appointed to any office under the -city government shall, within five days after notice of such election or appointment, take and subscribe, before the mayor, or any judge of a court of record, an oath or affirmation faithfully to perform the duties of his office, which oath or affirmation shall be filed in the office of the mayor.”

The burden of showing that the decedent held a public office was on the plaintiff, and there is no evidence that the intestate took an official oath. A person designated and employed as foreman of a street cleaning gang could claim with as much propriety as the decedent to be a public officer. We have not failed to note the cases in which excise inspectors, Gregory v. Mayor, 113 N.Y., 416 ; 22 St. Rep., 703 ; inspectors of masonry, Emmitt v. Mayor, etc., 128 N. Y., 117 ; 38 St. Rep., 907 ; court attendants, Rowland v. Mayor, 83 N. Y., 372 , and various other persons occupying positions in the courts, or in the departments of the state or city governments, have been held to be public officers; but in all those cases the position occupied was created and existed by force of some statute or local ordinance having the force of a statute. The plaintiff’s intestate was not a public officer, but a mere employe of the department of public works, serving for daily wages, at the rate of three dollars for each day’s service. When the officer who employed him, and had the power to continue or to cease to employ him, refused to permit him longer to render service, his right to wages was terminated. It makes no difference in what language the refusal is expressed. When his services were dispensed with, his right to pay ceased. We are unable to see any good reason why a person whose services are no longer desired is “ suspended," instead of being discharged ; and why the custom prevails, unless it is to “ keep the word of promise to our ear, and break it to our hope,” is difficult to understand. This practice 'has caused a multitude of actions against the city.

Chapter 119, Laws 1888, provides: “Ho person holding a position by appointment in any city or county of this state, re•ceiving a salary from such city or county (unless he has been appointed for a definite term), who is an honorably discharged soldier, sailor or marine, having served as such in the Union army or navy during the war of the Rebellion, shall be removed from .such position, except for cause shown, after a hearing had.”

The intestate held no “ position by appointment,” and he was

p. 236

compensated for his labor by daily wages, but not by “receiving; a salary,” and he is not within the statute. “ Salary ” differs from “ wages," and denotes a higher degree of employment. The term “ wages ” indicates inconsiderable pay, without excluding “ salary,” which is suggestive of a larger compensation for more important service. The contention that a person employed by the • city by the day, who has served in the army, cannot be discharged, or his services dispensed with, “ except for cause shown,, after a hearing had,” derives no support from the language or intent of the statute quoted. But, admitting that the terms of the employment of the intestate brought him within the act, he was; not entitled to pay from the city while unemployed, though wrongfully removed or suspended by the commissioner of public Works. Higgins v. Mayor, 131 N. Y., 128 ; 42 St. Rep., 711 . Y7hen this case was before this court on the former appeal the question whether the then plaintiff was a public officer, or a mere employe of the city, was not presented to, nor considered by, the court. However, that decision, in so far as it conflicts with this judgment, is overruled. The judgment should be reversed, and, as under no circumstances can the plaintiff recover, the complaint should be dismissed, with costs.

Yan Brunt, P. J., and Barrett, J-., concur.