Merzbach v. Mayor of New York

Ingraham, J.:

We do not think that the plaintiff, was entitled to recover.

The plaintiff occupied a subordinate position in the office of the district attorney of Hew York, and as such came within' the provisions of section 28 of article 3 of the Constitution, which provides, that the Legislature shall not, nor shall the common council of any city, nor any board of supervisors, grant any extra compensation te any public officer, servant or contractor. The plaintiff as the holder of such position in the district attorney’s office, received, during the period in which he performed the' service for which he asks te recover, a salary fixed by law and which was duly paid to him by the-*187city and county of Hew York. It also seems that during the period that he held this position, he was a notary public, and as such administered various oaths in various proceedings in which the People were parties. Some of these affidavits thus verified were affidavits of the district attorneys in office during the period, and others the affidavits of assistants, clerks or witnesses. He seeks to recover in this action against the city of Hew York for the legal fees as notary for officiating as such in taking these affidavits. He does not pretend that there was any arrangement made with the district attorney or any of his assistants by which he was to be paid for such services as notary, in addition to the compensation fixed by law for the services- that he rendered in the office of the district attorney; and the inference that there was any such understanding is negatived by the fact that, before the services'for which he now seeks to recover were rendered, he had presented a bill for affidavits taken by him to the comptroller, who refused to pay it, and thus any liability had been repudiated by the city. He testified to various conversations with District Attorneys Martine and Fellows about these charges, but in none of them does he claim that there was any direct agreement by the district attorney that he should be paid for these services in addition to the compensation allowed to him by law and which has been paid to him. He refers us to no statute which makes the fees of a notary for services thus rendered to the district attorney or to his employees a county charge, or which justifies us in holding that this person, an employee in the district attorney’s office, is entitled, for the services that he renders to the district attorney, to additional fees over arid above the regular compensation allowed to him by law, and which has been fully paid to him. Ho appropriation has been made to pay these charges. It seems to me that his- claim is entirely unauthorized, and that, under the provision of-the Constitution, neither the Legislature, the common council nor a board of supervisors could grant him extra compensation for these services. Much less is he entitled to recover for them when there was no agreement to pay for them.

We are now dealing with a claim made by an employee in a public office to be paid a sum of money, in addition to the compensation allowed him by law, for services rendered in the office in which he was employed, and - during office hours when his time *188belonged to the public. ■ He presents no statute authorizing him to render the services, or to receive compensation for such services in addition to that allowed to him by law; and no public officer, authorized to employ him or to incur a liability for which the city is responsible, has directed him to perform the services or agreed that he should be compensated for them. The fact that there had been appropriated by the board óf apportionment a. sum of money for each of the years that the plaintiff held such position for the contingencies of the district attorney’s office would not authorize any one holding a position in the office to appropriate any portion of such money without the express authorization of the district attorney, or some express employment by him to render a particular service in aid of the district attorney in the administration of his office. Here was an employee who was paid to perform -certain services to the district attorney. During that time he also acted as a notary public in the office, without any express agreement as to the payment of his fees and with express knowledge that the city repudiated ■any obligation to pay him for such services. After such repudiation of liability on behalf of .the city, he proceeds to take such affidavits, without insisting upon- payment -of the fees for such service, and without being -employed to ■ render the service by the person responsible for the administration of the office ’ and the expenditure of the public money appropriated for the proper .conduct of the office; and then makes a claim for the fees in addition to the salary allowed by law for his services. • ■ .

What is it that entitles this plaintiff to hold the city liable for anything in addition.to the salary fixed by law and which he was paid ? There was no understanding with the district attorney that he was to be paid anything in addition to his salary. Except -so far as the'district attorneys thémselves occasionally verified an affidavit ¡ before him, no responsible officer required that he should render special and extra services outside of those imposed upon him by virtue of Ms position He did not receive any specific instructions from the district attorney to act as notary in the cases in the office. While there he swore in anybody that wanted to be sworn. Under these circumstances it seems to me that what he did was voluntary as a part of the services to be rendered in consequence of his employment, and nothing .appears to justify the conclusion that for such *189services as notary public he was to receive additional compensation. The inference on the contrary, is all the other way. By upholding such a claim as this, a most lax and dangerous system would be approved by which public officials could obtain payment from the public for services not authorized by their superiors, and for which no compensation is fixed by law. Such a system would prevent any regular control of the public, expenditure by those in whom that responsibility is vested by law. There was no promise, express or implied, that the plaintiff should be paid by the public for his-services as notary, and whatever service was rendered by him was clearly voluntarily rendered as an incident to his employment in the office, and for which the salary that he was paid must be accepted as sufficient compensation.

I think that, upon the evidence, the plaintiff was not entitled to recover, and the judgment should be affirmed.

Rumset and O’Brien, JJ., concurred.