Donnelly v. Mayor of New York

If the plaintiff were employed by the surrogate to record papers unrecorded by his predecessor under the powers conferred by the act of 1828 (L. 1828, c. 134), it is probable that the expense of his employment would be a county charge and might be incurred by the surrogate and audited by the supervisors, notwithstanding the restrictions in the acts of 1857 (L. 1857, c. 590, § 5), of 1868 (L. 1868, c. 854, § 4), and of 1869 (L. 1869, c. 875, §7), 'as to the incurring of expense without a previous appropriation. (People v. Supervisors, 22 How. Pr. 71; People v. Supervisors, 32 N. Y. 473; People v. Green, 56 N. Y. 466.) But the expense authorized by the act of 1828, *337above cited, is of a special and peculiar nature, and has no reference to the permanent appointment of salaried clerks holding from year to year. The latter class of employees would properly fall within the description of “ assistants,” whose appointment by the surrogate is provided for by the act of 1847 (L. 1847, c. 422, § 7), whose appointment must be in writing and filed in the office of the clerk of the city and county of New York. The surrogate can appoint no greater number than the board of supervisors may prescribe from time to time. As to such appointments by the surrogate, when authorized by the board of supervisors, the restrictions of the acts of 1857,1868 and 1869, as to incurring expense without appropriation, would apply, even if the appointees were not officer's and the limitation on the power of creating new offices in the act of 1867 (L. 1867, c. 806, § 2) did not invalidate the appointments.

The resolutions of the board of supervisors of July 30',, 1867, authorizing the-surrogate to “employ such aid, not to-exceed nine persons, as may be necessary to place the records of his office in a safe and useful form,” and appropriating $5,000 to pay such employees, was not necessary to make valid an employment by the surrogate under the act of 1828 {supra), making it his duty to record papers unrecorded by his predecessor. He had the power to employ persons for such purpose because it was his duty to do so.

If the said resolutions were offered to show authority for plaintiff’s appointment generally as an “assistant” to the surrogate, there is still needed a written appointment by the latter and the filing of such appointment in the county clerk’s office under the statute of 1847. It cannot be assumed that plaintiff was employed by the surrogate under the resolutions of July 30, 1867, to perform work required by the exigencies contemplated by .the act of 1828, because no proof whatever of the nature off his duties, except that he was one of nine “ recording clerks,” appears in the evidence. It must be clearly shown that the surrogate acted upon the- necessity-provided for by the statute to justify the audit of plaintiff’s claim by the supervisors as a county charge. But if we were *338to assume that his employment by the surrogate under the resolution was an employment to perform duties demanded by the exigencies of the occasion for the safety of the public records, we would not be safe in assuming that such necessity was not fully met by the ample provision of clerks and funds then made for the purpose. The mere fact that the plaintiff continued to work in the surrogate’s office after the appropriation of $5,0.00 was exhausted, and so continued for sixteen months, proves nothing and entitles him to no fixed salary. (Dunphy v. The Mayor, 8 Hun, 482.) He shows ho employment by the surrogate to perform special service, or at any fixed rate after the appropriation was exhausted.

The auditing of plaintiff’s claim for these sixteen months by the board of supervisors does not help him, because without a legal claim against the county, the supervisors had no jurisdiction.

From the evidence in the case before us the plaintiff’s claim seems to be based on a permanent, continuous employment from year to year, without a valid appointment being shown.

The defendant’s exceptions are sustained and a new-trial ordered, costs to abide event. (Code, § 1000.)

Van Hoesen, J., concurred.

If the plaintiff had discharged the duties of an assistant to the surrogate, under circumstances that warranted him in concluding that he had been appointed an assistant, it may be that the omission of the surrogate to put the appointment in writing and file it, as required by the statute, would not have prevented the plaintiff from recovering the stipulated compensation. But it is not necessary to examine or pass upon that question, for it was not claimed on the argument that the plaintiff had been appointed by the surrogate an assistant, under the 7th section of the act of 18471 (L. 1847, c. 432).

The right to recover was put upon the express ground that the plaintiff.was employed by the surrogate, as he had *339a right to do, under the act of 1828, to record the orders and decrees of the surrogate’s predecessor, and that his compensation therefor necessarily became a county charge, and I agree with Judge Daly, that there is no evidence in the case showing that such was the nature of the services performed by the plaintiff, during the period for . which he sought to recover. All that appears is, that he was employed by Surrogate Tucker on the 1st of September, 1867, as a recording ■clerk; that two years afterwards, in the estimate of the expenses of the year 1869, made by the chief clerk of the surrogate, there were included the salaries of nine recording clerks, of whom the plaintiff was one, under the resolutions of the board of supervisors, of July 23d, 1867, empowering the surrogate to employ not exceeding nine persons to place the records of his court in the safe and useful form, and for which an appropriation of $5,000 was made by the board of supervisors, to be applied towards the payment of the persons so employed, and that this estimate of expenses or budget was modified by deducting the salaries of the nine recording clerks, on the ground that no authority existed for their employment in 1869. The plaintiff’s claim was for services from July 5th, 1869, to July 1st, 1870, and there is nothing in the case to show that during this time he was employed and performed the kind of service for which provision was made in the act of 1828.

I agree, therefore, that a new trial must be granted.

Exceptions sustained and new trial ordered, costs to abide event.