Hanauer v. City of Utica — 57 N.Y. St. Rep. 358

Majority

p. 358

Louis S. Hanauer, App’lt v. The City of Utica, Resp’t.

(Supreme Court, General Term, Fourth Department,

Filed February, 1894 )

Headnote

Municipal Corporation.

The board of excise of a city has no power to fix its clerk’s salary beyond the sum fixed by the common council for one of the commissioners.

Appeal from a judgment of the Oneida county court.

Bees JÍ. Thomas, for app’lt; Josiah Perry, for resp’t.

Plaintiff was clerk of the board of excise of the city of Utica, and brings this action to recover for a quarter’s salary which fell due August 1, 1892. At the close of the evidence the court refused to submit to the jury .the question “ as to whether or not the minutes containing the resolutions ” of the common council adopted at its meeting of May 16, 1892, “ were duly presented by the clerk to the mayor ” as claimed by plaintiff. We think no error was committed by the court in denying the request. Confessedly the clerk of the common council did not deliver to and leave with the mayor a certified copy of the minutes with his seal, prior to the last days of June 29th, or 30th, and the minutes and resolutions therein were not approved at any time prior to those days; nor did the resolutions of the 16th of May become operative because not returned by the mayor prior to July 1,1892, with or without liis objection. His objection to the resolutions favoring the salary of the excise commissioners was timely when made by him in his veto message of July 1, 1892.

Inasmuch as the clerk of the common council certified the proceedings of May 16, 1892, on the 30th of June, the time had expired for the mayor to veto, when his veto message was given. The talk of the clerk at a prior date with the mayor upon the subject of presenting a certificate did not operate to set the time running in which the mayor was to act. The resolution of 16th May, 1892, therefore never became operative, as after the veto it was not again passed by the common council. The attempt to pass it over the veto failed July 1,1892, as only five votes favored it and seven votes against it. At that meeting the salaries of the commissioners were fixed at $250.00 per annum. The clerk of the board of excise was appointed by the board of excise pursuant to chap. 401 of the Laws of 1892. The board had no power to fix his salary beyond the sum fixed by the common council for one of their number. Section 10 of the Laws of 182, chap. 401. , .In

p. 359

asmuch as the salary of the commissiers was fixed at $250 each, per annum, that was the only compensation per annum the clerk of the board of excise was entitled to receive. The verdict gives him that amount, to-wit, $62.25, and interest, and it was properly directed by the county court of Oneida county, and the judgment entered thereon, I think, should be affirmed, with costs.

Judgment affirmed, with costs to respondent.

Martin and Merwin, JJ., concur.