Sniffen v. Mayor of New York — 6 N.Y. Super. Ct. 193

Majority

p. 193

Sniffen v. The Mayor, Aldermen, and Commonalty of the City of New York.

Headnote

The term “ salary,” of itself, imports a compensation for personal services, and not the repayment of moneys expended in the discharge of the duties of an office. Therefore, where one is appointed to a municipal office to which is attached a fixed salary, and its duties necessarily require, besides his personal service^, the services of a clerk or assistant, he is entitled to receive from the municipal authorities the necessary and reasonable expenses of the hire of such clerk.

If a previous ordinance or usage have existed, fixing a rate of compensation for such assistant, the officer is not warranted in exceeding that rate without the express sanction of the corporation.

Under the revised ordinances of 1845, the corporation attorney is entitled to receive from the corporation, besides his salary, the necessary expenses of clerk hire, not exceeding the rate fixed in the ordinance of 1838-1839.

He is not entitled to recover against the corporation any of the costs of suits, other than his disbursements ; nor to retain the sums paid to him under the ordinance, on the settlement, without suit, of complaints made to him for violations of the by-laws and ordinances of the city. He must account for such sums to the corporation.

(Before Duer, Mason, and Campbell, J. J.)

June 6;

Sept. 28, 1850.

This was a suit commenced in the supreme court, .to recover for services as attorney and counsel, and for moneys paid. The defendants pleaded the general issue with’a notice of set off. The suit was tried before referees, who reported in favor of the plaintiff for a part of his claim. A motion was made in this court, after the transfer of the cause from the supreme court, to set aside the report. There were several disputed claims, but the report of the case, and of the opinion at large, is confined to that respecting clerk hire, and the facts connected with it, which were as follows:

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The plaintiff-was>, appointed-by the- common; council of the city of New York to-the office of corporation attorney:on the. 13th of May,. 1845, and continued to .-discharge- its duties till: December 12th, 18461' On his appointment, -he employed and paid a person to assist him as clerk or assistant in that office, at $750 a year, and he also had other clerks, who assisted him from time to time in the discharge of his duties, to whom he paid from six to seven dollars per week. It was proved that these-clerks-were all necessary in order, to perform the duties of the office.

It was admitted by the parties, that during the time the plaintiff held the office of corporation attorney, the defendants provided for him an office in the Old Alms House building, and which was known and designated as the corporation attorney’s office; that they had furnished and provided fuel for such office, and paid for the stationery used-therein, and for the printing done for the office during that time. The plaintiff's counsel admitted, at the request of the defendants’ counsel, that the plaintiff had .received-his salary, at the'rate of $2000 per annum, ■ from the 13th • May, 1845, the time of his appointment, to 1st of November, 1846, $2923.91, in full of $2000 a year, to that time. The-salary from Nov. 1st to Dec. 12th, 1846, had not been paid.

The following ordinances of the-common council- of the city of New York were produced in evidence:

Revised ordinances of 1838-1839, from chap. 4th, title 2d.

' “ Of the attorney to the corporation, cfrc. — § 1. A suitable person, of the degree of attorney at-law in the supreme court, shall be appointed as ■ attorney to the corporation. - It shall be his duty to commence and prosecute all suits for breaches of the laws and ordinances of:-the corporation; all suits-arising under the charter-of this city; and all- actions -upon-the laws of this state, in cases'where the penalty is given to this corporation or to the overseers of the poor of this city. ■

- “ §'2. The attorney of th'e-corporation shall hereafter receive a salary of two thousand two hundred and-fifty- dollars per an

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num, payable quarterly; and the further sum, in lieu of clerk hire, of seven hundred and- fifty dollars- per annum, payable quarterly, in lieu of all fees or other charges against the corporation, or against any other person or persons, on any complaint for a violation of any ordinance of the common council,” &c. (The residue of the section is not material to the point reported.)

By an ordinance adopted May 29, 1844, the salary was reduced to two thousand dollars per annum, and the provision relative to clerk hire was abolished.

Revised ordinances of 1845, from cjiap. 4th, title 2d.

Section 1, precisely the same as the first section of the ordinance of 1838-1839, above inserted.

“ § 2. The attorney of the corporation shall hereafter receive a salary of two thousand dollars per annum, payable quarterly; in lieu of all fees or other charges against the corporation, or against any other person, or persons, on any complaint for a violation of any ordinance of the common council.”

A. J. Willard, for the defendants.

U. H. Burloch, for the plaintiff.

By the Court.

The first question we shall consider is as to the right of the plaintiff to charge the defendants with the sums paid for clerk hire.

It was not contended by the counsel for the defendants that the business of the office could have been performed without the aid of clerks, or that the sums paid them exceeded the value of their services, but it was insisted that by the true construction of the corporation ordinances on this subject, the plaintiff was bound to defray the expense out of his own pocket.

The ordinance of 1839, which first rendered the office of attorney to the corporation a salaried office, ordained as follows: “ The attorney of the corporation shall hereafter receive a salary of $2250 per annum, payable quarterly, [and the further sum, in lieu of clerk hire, of $750, payable quarterly,] in lieu of all fees or other charges against the corporation, or against any

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other person or persons, on any complaint, for a violation of any ordinance of the common council.” (By-laws & Ord. Corp. 1839, revised, 1838-9, tit. 2, ch. 4.) In the month of May, 1844, the salary was reduced to $2000, and the allowance for clerk hire was by resolution of. the common council abolished. And in the revision of the corporation ordinances of 1845, this section reads as follows: “ The attorney of the corporation shall hereafter receive a salary of $2000 per annum in lieu of all fees or other charges, &c., &c.” And the argument of the counsel for the defendants was, that the allowance for clerk hire being stricken out of the ordinance, the plaintiff must pay the expense himself.

But the term “salary” of itself imports a compensation for personal services, and not the repayment of moneys expended in the discharge of the duties of the office; and had the ordinance simply said, the attorney shall receive a salary of $2000, he would in our judgment have been entitled to have received that amount free and discharged of all expenses necessarily incurred in conducting, the business. Such is certainly tbe general understanding and practice with regard to salaried officers. We are not aware of any salaried officer of the general, state, or city government, or even of our incorporated monied institututions, who- is .required to defray such expenses out of his salary. The corporation themselves have given a practical construction to the act. They made an allowance for clerk hire in the act of 1839, and it is in evidence in this case that they provided the plaintiff with an office, and fuel, and stationery, as long as he, held the situation.

The ordinance, however, does not merely give a salary, but states specifically the services in consideration of which it is given; it is in lieu of all fees or other charges against the corporation, or against any other person or persons, on any complaint for a violation of any ordinance of the common council. Instead of receiving the fees and charges to which he might be entitled for each particular service, the corporation retain the benefit of these fees to themselves, and in consideration thereof stipulate to pay him a stipulated sum per annum. He was bound, for

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the salary, to perform all the services mentioned in the ordinance, whatever the fees according to the established rates might have amounted to. And, on the, other hand, the corporation were bound to pay him the full sum without any deduction, and their obligation to do this was not at all affected by their omission to make an appropriation for the necessary expenses of the office. This they were bound to do at any rate in order to fulfil their contract with the attorney, and they cannot make their omission to perform their duty in one respect^the justification of a breach of contract in another. The argument of the defendant’s counsel would be sound, if the obligation to pay the clerk hire depended on the fact of their making an appropriation for that object; but they were bound in good faith to do so, and the appropriation is nothing more than the recognition and performance of a previous duty.

We think, therefore, that the defendants are chargeable with this clerk hire. The only question is as to the amount. The allowance which the corporation had formerly made was $750. ' They had themselves for a number of years recognized this as a reasonable and necessary sum for that object, and the plaintiff, on, his entering upon the duties of the office, was justified, we think, in the absence of any express provision, to go to that extent. Their consent might fairly have been presumed to such an amount. Although it would have been more prudent for him to have applied to them on the subject, still his omission to do so did not, we think, free them from the obligation to pay a reasonable sum. If he was imprudent in not asking for an appropriation, they were guilty of a breach of duty in not making it without an application.

But we do not think he was justified in exceeding the amount which had been formerly allowed, without the express permission of the defendants. They were on the spot, and could have been applied to. If from the increase of business a larger number of clerks was necessary, it was for them and not the plaintiff to determine what additional expense should be incurred. Beyond the amount previously allowed, no consent could be inferred. Our opinion therefore is, that the plaintiff is entitled to

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be allowed for clerk hire at tbe rate of $750 per annum, and no more.

(The judge then proceeded to examine the other points in dispute, as to which it is deemed necessary to state merely the decision of the court, which was, first, that the plaintiff was not entitled to recover the taxable costs in suits prosecuted by him as corporation attorney in' courts of record; but w^s to be allowed his disbursements expended in such suits, where the same had not been collected of the adverse party. Second, that the plaintiff was not entitled' to retain to his own use the sums received by him on the settlement, without suit, of complaints made to him of breaches of the laws and ordinances of the corporation, and for other penalties falling within his province as corporation attorney. That the sums so received belonged to the corporation, and he must account for the same.)

Report of the referees modified accordingly.