By the terms of the charter of the city of Brooklyn, the heads of the departments had power to appoint necessary clerks. (Chapter 863, Laws of 1873, title 19, § 8.) By section 28 of the same title, such head of department could fix their compensation.
The Legislature, by chapter 459, Laws of 1877, authorized the, common council to fix and regulate the salaries of the various officers, clerks and subordinates. The common council have never acted under this law.
The plaintiff was a clerk in the department of arrears, appointed by the register. In November, 1878, his compensation was $133.33 per month. During the month the head of the department informed him that he had fixed his compensation for December, 1878, at $150.
*298It is not disputed but that the appropriation by the common council, for the department of arrears, is sufficient to pay this increased compensation. The claim is made by the city that the common council alone can fix compensation of clerks. I think the claim is untenable. There is no express repeal of the section of the charter which permits heads of departments to fix rates of wages. There is no duty put by the Law of 1877 upon the corn-common council. It is authorized to fix rates. These words do not necessarily require a repeal of that part of the charter alluded, to. In a certain sense the common council have acted upon thn subject. An appropriation has been made to cover all the expenses of this particular department of arrears. The expenses are within it. The plaintiff is either entitled to recover the amount fixed by the register of arrears, or he can recover upon a quantum meruit. The finding is that the services were worth $150, for the month of December, 1878.
The judgment should be affirmed, with costs.
Dykman, J., concurred; Pkatt, J., not sitting.Judgment affirmed, with costs.