Cowan v. Mayor of New York — 10 N.Y. Sup. Ct. 632

Majority

p. 632

JAMES COWAN, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant. W. J. FINNEGAN, Respondent, v. THE SAME, Appellant.

Headnote

What courts will take judicial notice of—-Extra compensation — not allowed to salm'ied office!'—Power of supermsors of New York to audit claims — sec. 7 of chap. 190, Laws of 1870 — Legal claim—what is.

This court is bound to take judicial notice that furnishing naturalization papers by the clerk of a court, and indexing naturalization books when necessary, are a part of the duties devolving upon the clerk by law.

This action was brought by the plaintiff, a salaried clerk and assistant in the Marine Court of the city of New York, to recover compénsation for extra work performed by him in furnishing naturalization papers and indexing naturalization books in the said court. After the services were performed, a resolution was passed by the board of supervisors directing the comptroller to pay him $1,000 for such services. Held (1), that the plaintiff had no legal claim against the, county for such services, as the law imposed them upon the clerk as part of his duties; (2), that, as the board of supervisors were forbidden by law from auditing any not legal claims, they had no authority to direct the payment of the plaintiff’s claim, and that the resolution was unauthorized and void.

A legal claim is one which the party asserting it may enforce by action, or some proceeding at law or in equity.

Appeals ■ from judgments in favor of the plaintiffs, entered on verdicts directed by the court. The facts and questions of law in each of these cases, are precisely the same, and they were accordingly heard together.

D. J. Dean, for the appellant.

Doit. H. Strahan, for the respondents.

The complaint of the respondent Cowan alleges that on . or about the 19th day of June, 1870, he was duly appointed a clerk and assistant in the Marine Court of the city of New York, and that from the date of his said appointment, up to the 17th of February, 1874, he continued to do and perform the duties incumbent upon him as such clerk and assistant., That while so employed as

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such clerk and assistant, he did' and performed extra work, labor and services for the county of New York, in furnishing naturalization papers and reindexing naturalization books, etc., in the said Marine Court. The specification by the complaint of the “ extra work, labor and services,” shows that they were clerical work pertaining to the office of clerk of the court, and to be performed by the clerk, his deputies and assistants. This court is bound to take judicial notice that “ furnishing naturalization papers ” by the clerk of a court, “ and indexing naturalization books ” when necessary, are part of the duties devolving upon the clerk by law; and extra work, labor and services thereupon, can mean nothing more than meeting the exigencies of some unusual pressure of that class of duties upon the officer, either by working out of ordinary office hours, or with greater skill and diligence during such hours. The answer alleges in substance, that the plaintiff was, as such clerk and assistant of the Marine Court, a salaried officer, and that it was his duty to perform the services mentioned in the complaint, without extra charge or compensation beyond the salary appurtenant to his office, and that all the salary appurtenant to his office has heretofore, and before the commencement of this action, been paid to him in full. And it was admitted on the trial, that the plaintiff had received his salary as alleged in the answer. The plaintiff on the trial put in evidence a resolution of the board of supervisors, adopted August 23, 1871, in these words: “ Resolved, That the comptroller be and he is hereby authorized and directed to draw his warrant in favor of James Cowan, third assistant clerk of the Marine Court of the city of New-York, for the sum of one thousand dollars ($1,000), for extra services, viz., for furnishing copies of naturalization papers, and reindexing naturalization books, etc., of said court, and charge the same to the proper appropriation.” This resolution shows a little more clearly that the work done pertained altogether to the office of the clerk, as part of his official duties. The first point made by the appellants, is, that the respondent had no legal claim against the county for the services alleged to have been rendered; and this point is based upon the ground that he was a salaried officer, and bound to perform such official duties for the salary pertaining to his office, and without additional compensation. A legal claim is one which the party

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asserting it may enforce by action, or by some proceeding at law, or in equity. We think the plaintiff’s claim was not of that character. In Bright v. The Supervisors of Chenango,^[8] it was held, that where services were rendered specially for the benefit of the county, and for which other provision had not been made, they formed a proper subject of compensation by the board of supervisors; but, in Matter of Mallory v. The Supervisors of Cortland County,^[2] it was held that the county clerk, who was by law clerk of the Courts of Oyer and Terminer and General Sessions, was not entitled to fees for services as clerk of such courts, because the course which the legislature had taken with the revised fee bill, evinced “ that they did not mean to allow any compensation ” for such services.

In the People ex rel. Phoenix v. The Supervisors of New York,^[3] the relator was district attorney of the county of New York. The statute provided that the district attorney of the city and county of New York, shall receive for his services an annual salary of not less than $2,300, nor more than $3,500, to be fixed and' paid by the common council of that city.^[4] The salary was fixed at $3,000. Subsequently, the legislature devolved upon him new duties -before then pertaining to the sheriff of the county.^[5] It was claimed that he was entitled to additional compensation for such new duties, beyond the amount of his salary. The court held otherwise, Bronson, J., by whom the opinion was pronounced, saying: “ By charging the attorney with the duty of suing for fines, without making provision for the payment of costs, the legislature has, in effect, declared that the salary of the officer is to be deemed the compensation for these as well as for other services. It is impossible for a salary officer to make title to an increased compensation, on the sole ground that a new duty has been cast upon him by the legislature.”

And, in Palmer v. The Mayor^[6] it was held that an officer had no valid claim for extra remuneration, for services required and rendered in the duties of his office, on a day (Sunday) on which he was not legally bound to work; and see Hatch v. Mann.^[7] As it cannot be doubted that the services rendered by the respondents were within the scope of the official duties of the clerk, it seems

† † 2 Cowen, 531.

‡ ‡ 1 Hill, 362 , 367.

§ § 1 R. S., 383, § 95.

|| || Statutes of 1830, chap. 320, § 52.

¶ ¶ 2 Sandford, 318.

** * 15 Wend., 44 .

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very clear that no claim for extra labor and services, in performing them, could have been enforced by suit or mandamus. But it is argued that the questions, whether these services were rendered, whether they were extra, whether they should be paid for, and what compensation should be paid for them, belonged to the board of supervisors, who were sole judges in respect of them, and that their action was in the nature of a judicial determination, and was conclusive. Conceding the argument to be sound, in the absence of any statutory prohibition or restriction, the question cannot be the same ••where such a statute exists. By section 7, of chapter 190, of the Laws of 1870, it is declared, that “no allowance or payment, beyond legal claims, shall ever be allowed by the board of supervisors.” This provision is only applicable to the board of supervisors of the county of New York. It is insensible and idle unless it operates to take away from that body all jurisdiction and authority to allow and pay claims which are not legal; and especially is this so, when the amount demanded and attempted to be allowed is beyond the legal claim of the party for the services embraced in his claim. Without doubt, the plaintiff had an entirely legal claim for the services mentioned in his complaint, and all other services rendered by him in the discharge of the duties of the clerk of the court. That.claim was his salary; and, since it appears that it was paid to him, we must assume that it was lawfully audited and allowed. When, therefore, the supervisors undertook, upon their own sense of propriety or justice, to direct $1,000 more to be paid to him, for a part of the same services which would otherwise have been covered and compensated by his salary, they were attempting to allow and pay an amount beyond his legal claim, because, as we have seen, no law awarded it to him, and no court, by any suit or proceeding, could have adjudged it to him. This was, in our judgment, an excess of authority, in plain violation of a statute; and, if the acts of supervisors are, when within their jurisdiction, to be deemed judicial, this was extra judicial because beyond such jurisdiction. We do not consider these views at all in conflict with Outwater v. (Green, or the People ex rel. Brown v. Green^[8] for the question whether the supervisors could audit and allow a claim not legal, or an amount for ofBcial services beyond the legal claim of a'salaried

* 2 N. Y. S. C., 18, 23.

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officer, in violation of an express statute of prohibition, was not before the courts in either of those cases. Without considering the other questions raised in the ease, we think the one discussed fatal to the plaintiffs recovery, and therefore reverse the judgment and direct a new trial, with costs to abide the event.

Daniels and Brady, JJ., concurred.

Judgment reversed and new trial ordered, costs to abide event.

Footnotes

* 18 Johns., 242 .