[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 60 The plaintiff's intestate, Charles B. Wintersteen, was appointed to the position of assistant engineer in the department of docks and ferries, in the city of New York, on or about January 1, 1909, and he had for some years prior thereto served in a minor capacity in the department. The plaintiff, as administratrix, brings this action to recover certain arrears of compensation to which, it is alleged, the decedent became entitled.
On April 30, 1902, the board of estimate and apportionment of the city fixed the compensation to be paid to certain officers, clerks and employees of the department of docks and ferries, among others, the following:
Name. Title. Salary.
John A. Bensel ........ Engineer-in-Chief ..... $6,000 Chandler Davis ........ Assistant Engineer .... 3,000 S.W. Hoag, Jr. ........ " " .... 3,000 W.E. Belknap .......... " " .... 3,000 Allen N. Spooner ...... " " .... 3,000 J. Garnett Basinger ... " " .... 2,400 John M. Stewart ....... " " .... 2,100 Joel J. Pemoff ........ " " .... 1,800 Romeo T. Betts ........ " " .... 1,800 Benjamin S. Weaver .... " " .... 2,100 F.W. Belknap .......... " " .... 1,800 John A. Duntze ........ " " .... 2,400 Hiram C. Calkins ...... " " .... 1,500 William Lansing, Jr. .. " " .... 1,800
On March 24, 1905, the board of estimate and apportionment adopted the following resolution:
"Resolved, That the Board of Estimate and Apportionment hereby recommends to the Board of Aldermen, in accordance with the provisions of section 56 of the *Page 61 Greater New York Charter, that the salary of the position of Assistant Engineer in the Department of Docks and Ferries be fixed at the rate of Four Thousand Dollars ($4,000) per annum."
The board of aldermen concurred in the resolution, and the mayor approved it April 18, 1905.
The plaintiff's intestate continued to serve in the position of assistant engineer from January 1, 1909, to the time of his death on March 10, 1912. He was paid each month at the rate of $1,800 a year, and this action is to recover the difference between that sum and the sum of $4,000, which, it is alleged, was his lawful compensation.
The claim of the plaintiff is that by the resolution of the board of estimate and apportionment, approved April 18, 1905, the compensation of all the assistant engineers in the department of docks and ferries was increased to $4,000 per annum. The argument of the defendant, the city, is that the resolution of April, 1905, related only to the position of one assistant engineer in the department. It will be observed that the resolution uses the word position in the singular number, which the city says means but one assistant engineer. The plaintiff contends that the wordposition, though in the singular number, is a collective noun, and includes every person in the department holding the position of assistant engineer. The language of the resolution is susceptible of either interpretation, and, as either the one or the other prevails, the plaintiff or the defendant is successful in the action.
It seems, therefore, that an ambiguity exists which opens the door to proof of extraneous circumstances which may throw light on the meaning of the resolution. The corporation counsel argues for the application to the case of the doctrine of practical construction. He urges that the interpretation placed upon the resolution by the decedent and the city officers may be shown to remove the ambiguity. (City of New York v. New York City *Page 62 Ry. Co., 193 N.Y. 543; Grimmer v. Tenement House Dept.,N Y, 205 N.Y. 549; Matter of City of New York, 217 N.Y. 1.)
The courts are rather loth to admit proof of extraneous facts and circumstances to aid in the interpretation of a written instrument, but there is no doubt that it is the proper course to pursue when a real ambiguity is found. As was said in Grimmer v. Tenement House Dept. (supra): "There is no question that the practical construction of a statute by those for whom the law was enacted or by public officers whose duty it is to enforce it, acquiesced in by all for a long period of time, is of great importance in its interpretation in a case of serious ambiguity." (p. 550.)
As bearing upon the question of practical construction, the court found that the decedent, Wintersteen, never protested to the commissioner of docks, or to any other officer of the city, against the payment to him of compensation as assistant engineer at the rate of $1,800 per annum, and never made any claim that he should be paid at the rate of $4,000 per annum. The court also found that the municipal civil service commission never certified any payroll in which Wintersteen was credited with pay as an assistant engineer at the rate of $4,000 per annum. Also that each month he was paid the sum of $150, and he receipted therefor upon the payroll of the department of docks and ferries in full for his services, without objection of any kind. It was also found that in January, 1909, when Wintersteen was appointed assistant engineer, he was taken from the position of transit man and computer, where he received the annual compensation of $1,800, and the municipal civil service commission then certified that he was eligible for appointment as assistant engineer at the same rate of compensation. Wintersteen was accordingly appointed assistant engineer.
It will be noted that in the resolution of the board of *Page 63 estimate and apportionment adopted on April 30, 1902, there appears in the list of assistant engineers the names of S.W. Hoag, Jr., and Allen M. Spooner. The trial judge found, with reference to Hoag, that on June 28, 1904, the commissioner of the dock department applied to the board of estimate and apportionment to have the salary of Hoag increased from $3,000 to $4,000 per annum on the ground of long and faithful service in the department, and that the resolution of March 24, 1905, followed. Thereafter the pay of Hoag was increased from $3,000 to $4,000. The other assistant engineers in the department, who performed various services, and whose compensation was fixed at amounts ranging from $1,500 to $4,000, all continued to be paid the same compensation as theretofore without any protest, and they receipted in full on the payrolls of the department. The finding of the court with regard to Allen M. Spooner is practically the same in legal effect as the finding with regard to Hoag, except that the compensation in his case was $3,500.
The circumstances which led to and which followed the adoption by the board of estimate and apportionment of the resolution of March 24, 1905, relating to the compensation of assistant engineer in the dock department, clearly sustain the construction placed on the resolution by the city, and justify the denial of the plaintiff's claim.
The appellant urges that the resolution fixing the compensation of architectural draftsman in Smith v. Board of Education,N.Y. (208 N.Y. 84) and in Pitt v. Board of Education, N.Y. (216 N.Y. 304) was the same as the resolution fixing the compensation of assistant engineer in the case under review. In the opinions rendered in those cases the wording of the resolution does not appear, and, at any rate, the question of a practical construction of the resolution was not considered by the court. In People ex rel. Stokes v. Tully (108 App. Div. 345,349) the wording of the resolution fixing compensation was materially different *Page 64 from that in the case under review, and, more over, the court did not consider in that case the question of a practical construction of the resolution.
I recommend that the judgment appealed from be affirmed, with costs.
HISCOCK, Ch. J., CHASE, COLLIN, HOGAN, CARDOZO and POUND, JJ., concur.
Judgment affirmed.