The plaintiff was a section foreman in the street-cleaning department of the city of New York. From the 26th day of April, 1894, to the 22d day of March, 1895, the plaintiff worked a portion of 47 Sundays, and he sues to recover for the services performed on such Sundays, in addition to the salary paid to him by the city. He concedes that he has been paid his salary, but alleges that, by the provisions of the law under which he was-appointed, he is entitled to extra pay for work done on Sundays. The salaries of employés of the street-cleaning department were pro- ‘ vided for by section 3 of chapter 368 of the Laws of 1894. It is there provided that the annual salaries and compensation of the members of the uniformed force of the department of street cleaning shall be fixed by the board of estimate and apportionment, and shall not “exceed the following.” There then follows an enumeration of the employés of the department, and a sum of money is specified following each position enumerated. After the office of general superintendent the amount specified is $3,000, and of the assistant superintendent, $2,500. Then follows an enumeration of the other offices, which includes that of the section foreman. The amount named after specifying this office is $1,000. Following, other employés of the department are enumerated; and, after specifying each officer, a sum of money is named. The last employés named are the hostlers, and there follows: “$720 per year, extra pay for work on Sundays.” The section then continues: “The members of the department of street cleaning shall be employed at all such times and during such hours and upon such duties as the commissioner of street cleaning shall direct for the purpose of an effective performance of the work devolving upon said department.” It will be noticed that this statute does not of itself fix the salaries and compensation of the employés of the department. It provides that such compensation shall be fixed by the board of estimate and apportionment, but shall not exceed the sums mentioned. Thus, the board of estimate and apportionment had the power to fix the salary of the officers and *378■employés- specified, at any sum not exceeding the limit fixed by the statute. Until that board acted, the compensation to be paid to these ■officers had not been fixed.
The plaintiff testified that he was appointed on the street-cleaning force in 1889, and continued an assistant foreman until January, 1890; that at a later period he was designated a section foreman, and continued as such until March 22, 1895. From 1890, when he was appointed, down to his discharge, he was paid at the rate of $1,000 per year for his services. He testified that he was required to work on Sundays; that he protested against doing so to the general superintendent, and also to the district superintendent; that the superintendent of the department responded to his protest that, if he did not work, he would lose his position. It seems from his testimony that all of the uniformed force was required to do more or less work on Sundays, as.well as on week days." It was further proved that at a meeting of the board of estimate and apportionment, ■on July 31, 1894, a resolution was adopted which recited what purported to be section 1 of chapter 368 of the Laws of 1894, and then resolved that the annual salaries and compensation of members of the uniformed force of the department of street cleaning “shall be •and are hereby fixed at the amount stated in the statute as quoted in the foregoing preamble, to take effect from and after April 26th, the date of the passage of chapter 368 of the Laws of 1894.” By this resolution there was no special action of the board of estimate and apportionment fixing, as any part of the salary of the plaintiff, any sum of money for extra work on Sundays. His salary was fixed at the amount stated in the statute. Now, the amount stated in the statute, as recited in the preamble, as the salary of the section foreman, was $1,000 each; and that seems to me to be the amount which the board of estimate and apportionment fixed as the salary of such section foremen. Assuming that the board of estimate and apportionment had power to fix an amount which would be payable to ■each of these officers recited in the preamble as extra pay for work on Sundays, it seems to me that, to entitle them to such extra compensation, some specific sum must be fixed by the board of estimate and apportionment for Sunday work for each employé. That the board did not do. They fixed the salaries of these employés at the amount stated in the statute as quoted in the preamble. The amount stated in the statute as so quoted as the salary of the section foremen was $1,000 per year each, and, as that was the amount of salary fixed by the board of estimate and apportionment, that salary was all that the plaintiff was entitled to.
But I think it also clear that it was the meaning of the statute that the salary of the section foreman should not exceed $1,000 per year. The section in question fixed the compensation of all of the uniformed force of the department. After fixing an annual compensation for each officer, there followed a semicolon, thus separating each officer from those that preceded and those that followed; and at the end of this enumeration is the provision, “of the hostlers, $720 each, and extra pay for work on Sundays.” From this provision of the statute it would seem plain that the words “and extra pay *379for work on Sundays” applied only to the hostlers. The legislature gave to the board of estimate and apportionment power to fix, in -addition to the $720 per year to be paid to the hostlers, an additional compensation for Sunday work, but made no such provision for the -other officers named. An officer taking this appointment under the statute would understand that his salary was not to exceed $1,000 per year, and that it was to cover all services rendered to the city ¡under his appointment, whether on Sundays or week days. That he might be called upon to work on Sundays was apparent from the •statute, and such work would not entitle him to receive any compensation in addition to that fixed by the board of estimate and apportionment. His salary for the work performed under the statute was fixed, and, if he did not wish to perform the services required of him for the compensation fixed by law, he was not compelled .to remain in the employ of the department. Many other officers are required, by the nature of the services which they are appointed to perform, to work on Sunday, notably policemen and firemen; and it is clear that the salary paid to them includes the service that they perform on Sunday.
I think, therefore, that the salaries as contemplated by this statute were not to exceed the amount named, and that the provision that the board of estimate and apportionment could fix a sum as compensation for work on Sundays applied only to the hostlers; that the board of estimate and apportionment, in passing the resolution which they did, fixed the salary of the plaintiff at $1,000, the amount stated in the statute; and that he was not entitled to any greater compensation for his services to the city. There is nothing to show that by subsequent action the board allowed to the plaintiff any sum for extra Sunday work. It appears that on December 27, 1894, the commissioner of street cleaning presented to the board of estimate and apportionment an estimate of the necessary expenses for Sunday work, which would include a payment to each of the officers named in this section of the statute; but there is no evidence that the board took any action on this report which would entitle plaintiff to any compensation in addition to the salary allowed' him by the former resolution.
I think, therefore, that the plaintiff was not entitled to recover ■extra pay for Sunday work, and that the judgment appealed from should be affirmed, with costs.
McLAUGrHLDSÍ, J., concurs.