The plaintiff brought suit to recover for the balance of salary alleged to be due him as surgeon of the police from Sept. 17,1873, to Jan. 3, 1876. He claims that his salary for that period was fixed bylaw at $2,250 per annum (L. 1866, c. 861), that he has been paid only at the rate of $1,000 per annum, and asks judgment for the difference.
On Sept. 15,1873, the Board of Police Commissioners of the city of New York adopted the following resolution : “ Resolved, that the following named physicians be appointed district surgeons, and assigned to districts, at an annual salary set opposite their respective names.
“ Sigismund Waterman, 12th District . . $1,000.”
*490In pursuance of this resolution Dr. Waterman accepted the appointment and performed his duties thereunder as surgeon from Sept. 21, 1873, to Jan. 3, 1876.
The appointment above mentioned was made by authoritjr of “ an act to reorganize the local government of the city of New York,” passed April 30, 1873 (L. 1873, c. 335, § 40), whereby the Board of Police was authorized to appoint surgeons of police. ■ Section 43 of this act provides that every person connected with the police department of the city of New York on April 30, 1873, except as otherwise therein ordered, shall continue in office at the salary or compensation then legally paid, which is thereby fixed as the salary or compensation of the office held by such person under said act. But the police commissioners were empowered to “ fix the salary and compensation of such clerks other than policemen whom they may be authorized by law to employ.”
I shall first examine the question of defendant's liability upon the evidence, which, if not established, will obviate the necessity of considering the other points raised.
By the new charter hereinafter referred to (L. 1873, chs. 335 and 755), the police department was made a distinct and separate branch of the municipal government of the city of New York. The moneys required to meet its annual expenditures are apportioned on its suggestion, and placed to its-credit, to be disbursed only on its proper official warrant.
The comptroller is required, on requisition of the Board of Police, to pay over the total amount annually estimated, levied, raised and apportioned for the support and maintenance of the police department (L. 1873, c. 755, § 7).
With all the funds at its disposal it is difficult to perceive how it could avoid any valid pecuniary obligation. Plaintiff should have first sought his remedy in this direction ; either by mandamus against the board or its financial officer, or by suit against its members individually for misfeasance. It does not appear that the appropriations for this branch of the city government were insufficient to meet its expenditures, or that defendant has done or failed to do any act by. which it has become primarily liable for the plaintiff’s salary.
*491The case is not distinguishable in principle from Dannat v. The Mayor (66 N. Y. 585). In that case it appeared that the Department of Public Instruction was a branch of the municipal government, whose appropriations, like those of the police board, were drawn on its own warrant. Subsequently that department was made an independent corporation, with power to sue and be sued. But the court held that, whether as a department or a corporation, its creditors must exhaust their remedy against it, not because it was at that time a corporation capable of being sued, but because its appropriations and expenditures were regulated by statute, the provisions of which should be observed and followed.
The case just cited and the one at bar are, in my opinion, essentially the same, and the judgment should be affirmed.
Roblxsox, J., concurred.