It appeared on the trial that the plaintiff was employed, in 1866, as a lamplighter to light the gas lamps at Jefferson market, and was to be-paid monthly the sum of twenty-five dollars.
He continued to be so employed till he was discharged by the street commissioner in 1872. He was paid for his services, except for the last three months of the year 1869. If, as is claimed by the appellants, the power to appoint lighters of gas lamps for the market was vested in the finance department by chapter 227 of the Laws of 1863, yet it must be assumed, from the meagre facts appearing in this case, and from the fact that the plaintiff’s employment was continued from 1866 to 1872, and that he was paid from month to month till October, 1869, that the finance department acquiesced in his appointment, and treated it as valid if not regularly made.
The acquiescence of the finance department and its action, in making payment for the services at a stipulated compen*86sation for so long a period, should be deemed equivalent to an actual employment by that department.
There was no offer to show that no appropriation had been made at the time the plaintiff was employed out of which he would be entitled to compensation.
An appropriation was, in fact, made in the year 1869, and out of which his compensation could have been paid, and the presumption must'be, if that appropriation was exhausted on the 18th day of October, as offered to be shown, ,that the'exhaustion was caused by subsequently accruing expenditure.
The offer was not broad enough to bring the case within the prohibiting section 11 of chapter 876 of the Laws of 1869, or of section 31 of chapter 446 of the Laws of 1857. We think the court did not, therefore,, err in excluding the offer.
It was claimed, by defendant’s counsel on the trial, that the plaintiff was not entitled to recover interest upon the amount due until a demand had first been made on the comptroller, as required by statute. In this case, it was averred in plaintiff’s complaint that the claim had been presented to the comptroller of the city of New York, and that more than thirty days elapsed since such presentation to pay the same. We have held that no right of action exists against the city until the lapse of thirty days after the presentation of the demand to the comptroller as required by the statute, and that interest does not accrue until the obligation to pay arises (Hook agt. Mayor, not reported). The plaintiff should not, therefore, be allowed interest for the whole period since January, 1870, but only from the lapse of thirty days from the"presentation of his demand to the comptroller. That point of time does not appear, except from the pleadings, and from the allegations in the pleadings, it can only be inferred that the suit was brought upon the expiration of such thirty days.
The summons was dated September 2, 1874, and on that *87day the complaint appears to have been verified, and in the absence of any thing more definite to fix the time, interest should have been paid from that date. But the judge below, in passing upon the question, said that be would reduce the amount of interest if the defendant’s counsel would present arfy authority on that question.
Under such circumstances we think it proper to direct such deduction to be made, and to affirm the judgment as so reduced, with costs of the appeal.
The plaintiff was entitled to judgment for seventy-five dollars, with interest from the 2d day of September, 1874, which amounts to six dollars and thirty-five cents.
Judgment modified so as to reduce it to that amount, and affirmed as modified, with costs of appeal.