— The plaintiff, in this action, was employed as a janitor by one of the justices of the civil district courts of the city. His work, as described by himself in his testimony, was to keep the court rooms clean, make fires, go on errands for the justice, take care of the property of the court, furniture, stationery, &c., and lock and unlock the court rooms.
He had been paid for his services by the defendant up to the 1st of January, 1875, at the rate of $1,500 a year, and subsequently to that time for the months of January, February, March, April and May, at the rate of $1,200 a year, which he received under protest. He claimed there was due him for services up to October 1,1875, the sum of $675, for which sum he brought this action.
By section 65, chapter 334 of the Laws of 1857, it is enacted, that the corporation of the city of Hew York shall furnish, at the expense of the city, all necessary attendance, fuel, lights, furniture, &c., for the district courts.
*495By resolution of the common council, approved March 16, 1870, it was resolved: “ That the justices assigned to each of ■ the police courts of this city, and the justices of the several district civil courts, be, and they are hereby authorized and empowered to appoint a janitor of each of said police and civil courts, at the annual salary of $1,500, payable monthly.”
It was under this authority that the civil justices appointed the plaintiff. The first point made is, that the district court had no power to employ or appoint the plaintiff the janitor of his court room, because the legislature had conferred that power upon the corporation of the city of New York, and the corporation could not devolve it upon the civil justice. We do not think this position well taken. The plaintiff, as a janitor, was not a public officer, but a mere employe or servant. His duties were servile in their character.
The duty imposed by the legislature on the corporation, in respect to his employment, was executive and ministerial, and could, we think, be exercised as well through the authority given to the civil justices, as by a direct employment by the common council itself.
No provision for the form of commissioning or employing the janitor was prescribed by the statute, and so long as the purposes of the act were accomplished, it seems to us of no legal importance how the corporation performed the duty.
The distinction between such a janitor and one having care of public buildings under the commissioner of public works, is pointed out by Daniels, justice, in Bergen agt. The Mayor (12 N. Y. S. C. R., 243), and the objection taken on the trial, that under the charter the commissioner of public works had the sole exclusive. power of employing janitors, is disposed of by that case.
As the plaintiff was in no sense a public officer, hut a mere ■servant or employe, the provision of the charter (chap. 335 of 1873, sec. 97), by which it is provided that the salaries of all officers paid from the city treasury, whose offices now exist, but are not embraced in any department, shall be fixed *496by the “board of apportionment,” does not apply to his case. That provision applies and was intended to apply to public officials of the city coming within its description, and does not extend to the compensation to be paid to mere employes or servants (Sullivan agt. The Mayor, 47 How., 491; Quinn agt. The Mayor, 53 N. Y., 627; Whittemore agt. The Mayor, 12 N. Y. S. C. R., 195).
The compensation the plaintiff received was subject to change at any time by the common council, who might reduce its amount for services in futuro to such sum as that body deemed proper, and if the plaintiff, after such reduction, rendered services, they would, of course, be under an implied agreement to perform them for the reduced compensation.
The common council could also discharge him altogether, and abolish the place, and confer its duties upon any other servant or employe; but while the resolution above cited remained in full force, and the plaintiff faithfully rendered the service under his employment by the civil justice, he was entitled to the compensation fixed by the resolution.
Motion for new trial denied, and judgment ordered for the plaintiff upon the verdict.