Mincho v. Mayor of New York — 17 N.Y. Super. Ct. 47

Majority

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Adolphus Mincho, Plaintiff and Apellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Defendants and Respondents.

Headnote

1. Under the Ordinances of the Corporation of New York, (adopted August 11, 1851, and as amended November 14,1851,) which provide a less rate of compensation for policemen who are detailed by the Mayor or Chief of Police for special duty, than is provided for those who perform post or patrol duty; a policeman who, during the whole term of his appointment, was detailed by the mayor to serve at the Court of Sessions, is not entitled to be paid as a patrolman, although he did patrol duty a part of every Sunday, and occasionally was called out to serve at fires.

(Before Hoffman, Pierrepont and Moncrief, J. J.)

Heard, December 15th;

decided, December 31st, 1858.

This action came before the Court at General Term on questions of law arising at the trial, and there ordered to be heard at the General Term in the first instance. It was commenced in March, 1856, and was tried before Chief Justice Bosworth and a jury, on the 16th of November, 1858.

The complaint alleges that the plaintiff “ was a policeman of the City of New York, duly appointed in and for the Sixth

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Ward of said city,” from on or before the 1st of September, 1851, to the 1st of January, 1853.

That during the whole of this period “ he was duly detailed by the Mayor of said city, to attend as such policeman and perform the duties of such policeman at the Court of Sessions in his said ward, and at divers other places in the said city; and that he did during the whole of said period so attend and perform the duties of such detailed policeman.”

That “ he did during the whole of said period exercise the office and perform the duties of a policeman of said city in his said ward.”

That “ by an act of the Legislature of the State of New York, entitled 1 An Act authorizing the Common Council of the City of New York to regulate the salary of policemen in said city,’ passed April 10, 1850, the Common Council of said city were duly empowered and authorized to fix the compensation of policemen.”

That “ the said Common Council, in due form of law, passed an ordinance on the 18th day of August, 1851, in the words and figures following, to wit

“ An Ordinance.—The Mayor, Aldermen and Commonalty of the City of New York, in Common Council convened, do ordain as follows:

“ § 1. The salary of Captains of Police is hereby fixed at the sum of eight hundred dollars per annum.

“ § 2. The salary of the Assistant Captains of Police is hereby fixed at the sum of seven hundred dollars per annum.

“ § 3. The compensation of Sergeants of Police, and Policemen performing post or patrol duty in their respective wards, shall be, for each and every day’s service, at the rate of six hundred dollars per annum.

“ § 4. The salary of policemen detailed by the Mayor or Chief of Police for the performance of any special duty is hereby fixed at the sum of five hundred dollars per annum.

“ § 5. This ordinance shall take effect on the first day of September next.”

The complaint further alleges, that the said Common Council, on the 14th day of November, 1851, in due form of law, passed another ordinance, in the words and figures following, to wit:

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“ An ordinance amending an ordinance fixing the compensation of Captains of Police and Policemen, approved August 18th, 1851.

“ The Mayor, Aldermen and Commonalty of the city of New York in Common Council convened, do ordain as follows:

“ § 1. The third section of the ordinance prescribing the compensation of Captains and Assistant Captains of Police, Sergeants of Police and Policemen, approved August 18th, 1851, shall be amended by striking out the words 1 for each and every day’s service at the rate of,’ so that said section when thus amended shall read as follows:

“ § 2. The compensation of Sergeants of Police and Policemen performing duty in their respective wards, shall be six hundred dollars per annum.

“§ 3. This ordinance shall take effect immediately.”

And the plaintiff further says, that the said Common Council on the 15th day of September, 1853, in due form of law, enacted as follows:

“ Resolved, That the pay of the detailed policemen be and is hereby fixed at the same rate as all other policemen, viz., six hundred dollars per annum, to take effect from the first day of January, 1853.”

“And the plaintiff further says, that during the aforesaid period, to wit, from on or before the first day of September, 1851, until on or before the first day of January, 1853, he received for his said services as such detailed policeman, and as a policeman in his said ward, only at and after the rate of five hundred dollars per annum; whereas, the amount actually due to the plaintiff for his aforesaid services, under the ordinances aforesaid, above what he so received, is one hundred and thirty-three dollars and thirty-three cents, besides interest thereon; which amount has been duly demanded from the aforesaid defendants, and the payment thereof unjustly refused.

“ Wherefore the plaintiff demands judgment against the said defendants for the said sum of one hundred and thirty-three dollars and thirty-three cents, with interest from the first day of January, 1853.”

The defendants, in their answer to the complaint,

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I. “ Deny each and every of the allegations of said complaint, except such as, and so far as the same are hereinafter admitted to be true.”

II. “ They admit that the said plaintiff was, from on or about the first day of September, 1851, to on or about the first day of January, 1853, a policeman of the city of New York, duly appointed in and for the Sixth Ward in said city, and that during said period, he was detailed by the Mayor of said city, to attend as such at the Court of Sessions in the Sixth Ward in the said city, and that he was, during said period, entitled to the compensation or salary, provided by the ordinance of the 18th of August, •1851, in said complaint set forth, to be paid to policemen detailed by the Mayor, or Chief of Police, for the performance of any special duty.”

HI. “ They admit the passage of the act of the Legislature of the State of New York, and the ordinances and resolution of the Common Council of the city of New York, in the complaint set forth.”

IV. “For a further answer to this action, they say, that they have paid the plaintiff in full for the services hereinbefore admitted to have been rendered them by him, and for every other service ever rendered them by the plaintiff,” &c., &c.

No questions arose upon, or are affected by any portions of the answer not above set forth.

The entire testimony given, and all the proceedings had at the trial, are as follows, viz :

Adolphus Mincho, the plaintiff, being duly sworn as a witness on his own behalf, testified as follows: “I was a policeman of the city of New York of the Sixth Ward from the first day of September, 1851, to January first, 1853, during all which tinte I performed the duty of a policeman in said ward; during all that time I was detailed and performed the duties of a detailed policeman at the Court of Sessions in said ward; I also did patrol duty in said ward for a part of every Sunday during that period, and made arrests in said ward and out of said ward, and I was sometimes called out when there was a fire; I was paid during, that period at the rate of only five hundred dollars per annum.

Being cross-examined, the witness testified: I was detailed a year or two or more before the first day of September, 1851, I

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was not a member of any patrol or post squad; I appeared at the station house at muster call on Sundays in the morning; I did patrol duty during said period parts of every Sunday, also at new years’ and at riots; I cannot tell how often I was called out at riots or fires; on Sunday I was not required at the Court of Sessions; I was paid, and signed a pay roll during that time semi-monthly; I never made a demand at the time of any payment to me, or at any other time for more salary than at the rate of five hundred dollars a year; I cannot say how often, nor on what particular nights I did such night duty.”

On his re-direct examination, the witness further states l

“ During that time, I did some night duty; I was always called out at riots, fires and holidays.

Spencer H. Stafford, being sworn as a witness on the part of the plaintiff, testified, that the plaintiff’s claim, from September 1,1851 to January 1,1853, is $133.33, the interest thereon from January 1, 1853, $54.83, amounting to $188-.1&.

The plaintiff here rested his case.

The defendants by their counsel moved to dismiss the complaint on the following ground. First—“That the plaintiff had not shown facts sufficient to constitute a cause of action against the defendants, whereupon the Court granted said motion to dismiss the complaint, to which decision the said plaintiff by his counsel then and there excepted. It was thereupon ordered by the Court that the questions of law arising on the said trial be heard in the first instance at General Term, and that the entry of judgment be suspended until the decision of the General Term.” -

Henry L. Clinton for the plaintiff.

Richard Busteed for the defendants.

The plaintiff alleges that he was, from the 1st September, 1851, to the 1st of January, 1853, a policeman of the city of New York, duly appointed in and for the Sixth Ward in said city, and entitled to the exercise of such office of policeman. During the whole of such period he was

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detailed by the Mayor to attend as such policeman, and perform the duties of such policeman, at the Court of Sessions in his said ward, and at divers other places in the said city; and that he did so attend and perform the duties of such detailed policeman.

Under powers conferred by the act of the Legislature of April 10, 1850, the Common Council, by an ordinance of the 18th of August, 1851, declared, in the third section, that the compensation of sergeants of police, and policemen performing post or patrol duty in their respective wards, shall be, for each and every day’s service, at the rate of $600 per annum.

And by the 4th section, that the salary of policemen detailed by the Mayor or Chief of Police, for the performance of any special duty, is fixed at the sum of $500 per annum.

Under this ordinance the plaintiff received his appointment.

On the 14th of November, 1851, the Common Council amended the third section so that, as thus amended, it read as follows: “ The compensation of sergeants of police and policemen performing duty in their respective wards, shall be six hundred dollars per annum.” The fourth section was left unchanged.

On the 15th September, 1853, an ordinance was passed, that the pay of the detailed policemen be fixed at the same rate as all other policemen, viz.: $600 per annum, to take effect from the 1st of January, 1853.

When this ordinance went into effect, the period of service of the plaintiff had ceased.

The plaintiff, on his examination as a witness, states that he did duty as a detailed policeman, and also did patrol duty part of every Sunday in his ward, and was sometimes called out when there was a fire; that he was not a member of any patrol or post squad.

The plaintiff claims the difference between $500 and $600, for the whole period of his service, being, with interest, $188.16.

Mr. Justice Bosworth granted a motion to dismiss the complaint. An exception was taken; the exceptions to be heard in the first instance at General Term, and judgment suspended.

It is, rare that so plain a case is presented to the Court. The Common Council discriminate between classes of policemen, and ■appoint different salaries for each class. This discrimination lasts while the plaintiff serves; and he was appointed m the class

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which received $500 salary. If he did other duty he volunteered it, without a shadow of contract, express or legally to be implied, that he should be paid; without a pretense even that the Common Council knew of the services, much less directly, or through any authorized agent, engaged him to render them.

The order dismissing the complaint should be affirmed, and judgment ordered for the defendants, dismissing such complaint, with costs.^[1]

Judgment accordingly.

1 The third, section of the ordinance of the 18th of August, 1851, fixed the compensation of policemen “performing post or patrol duty,” and the fourth section that of “detailed” policemen. The compensation prescribed for “detailed” policemen was $500 per annum; that prescribed for policemen “performing post or patrol duty” was not $600 per annum at all events, but was at that rate “ for each and every day’s service.” The ordinance of the 14th of November, 1851, by its terms, professed to operate upon the third section, and on that only. It amended that section so that by it, as thus amended, the compensation prescribed for policemen performing duty in their respective wards should be $600 per annum, generally and absolutely, and not at that rate “ for each and every day’s service.” The ordinance of the 14th of November, 1851, does not, in terms or by any just construction, affect the fourth section of the ordinance of the 18th of August, 3851. The very terms of the amending ordinance show that the whole object and purpose of amending was to eliminate from the third section the words “for each and every day’s service at the rate of” That such was the whole purpose of the amendment, and that it was so understood by the policemen and the defendants is shown, not only by the fact that the detailed policemen were subsequentlypaid and received $500 per annum, as being the whole compensation to which they were entitled, but also by the ordinance of the 15th of September, 1853, by which “the pay of *54 the detailed policemen” was “ fixed at the same rate as all other policemen, viz.: §600 per annum, to take effect from the first day of January, 1853.” The idea that a policeman, though a “ detailed policeman” was entitled to §600 per annum, provided he performed such duty in his own ward; and was entitled to but $500 per annum if he performed such duty in another ward, can find no support from the ordinance of August 18, 1851, as amended by that of the 14th of Hovember, 1851. There is nothing in the evidence given at the trial to justify the presumption or inference that any of the services which the plaintiff performed while a policeman, and as a policeman were services which it was not his duty as a “ detailed policeman” to perform. They seem to have been performed as services which, according to the regulations of the police department, a “ detailed policeman” was expected and required to render, as a matter of course. The evidence given is in perfect harmony with this view of his duties. In this view, the plaintiff has been paid the full compensation to which he was entitled. The ordinance of the 15th of September, 1853, cannot aid his claim to extra compensation, as he ceased to be a policeman before the time arrived from which that ordinance was to take effect.—Sep.