
    Edward L. Middleton, Respondent, v. The City of New York, Appellant.
    (Supreme Court, Appellate Term,
    May, 1906.)
    Municipal corporations — Officers and agents other than mayor and common council — Compensation — Who to fix salaries.
    Where plaintiff, upon the day he resigned as, architectural draughtsman, 'a position in the classified service of the city of New York, and for which an annual salary of $1,500 had been duly provided, was, at an increased salary, appointed by the special order of. the fire commissioner chief draughtsman, a position not classified and for which no salary had been fixed by the board of aldermen and the board of estimate and apportionment, he cannot,' after having been paid at the rate of $1,500, recover the difference between salary at that rate and at the rate of the increased salary specified in his appointment as chief draughtsman.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, second district, borough of Manhattan.
    John J. Delany, Corporation Counsel (Theodore Connoly and Thomas F. Noonan, of counsel), for appellant.
    Weed, Henry & Meyers (Eichmond Weed, of counsel), for respondent.
   Gildersleeve, J.

The plaintiff alleges in his complaint that, on the 4th day of December, 1902, he was duly appointed an assistant superintendent of buildings in the fire department of the city of New York at a salary of $1,950 per annum and entered upon the discharge of the duties of the said position and performed • the same; that, for the period from December 4, 1902, to May 1, 1903, he received from the defendant a salary at the rate of $1,500 per annum, instead of $1,950 per annum; and he demands judgment for the difference between said amounts for the period aforesaid. The learned court below found in favor of the plaintiff for the amount claimed, and defendant appeals. • The evidence is largely documentary. From a careful reading of all the testimony, the following facts appear to be established, viz.: On September 24, 1902, the plaintiff was appointed an architectural draughtsman to take effect October T, 1902, with an annual salary duly fixed by law at $1,500. The plaintiff continued in that position until December 8, 1902, when he resigned. On December 4, 1902, a special order was issued by the fire commissioner appointing plaintiff chief draughtsman at a sálary of $1,950 per annum to take effect on December 8,1902. It will be noted that plaintiff’s resignation as architectural draughtsman and his appointment as chief draughtsman took place on the same day. The position of architectural draughtsman, which, as we have seen, plaintiff assumed October 1, 1902, was a classified one, the salary of which was fixed by the board of aldermen and the board of estimate and apportionment, as provided by law. The position of chief draughtsman was not classified, nor was the salary fixed by the board of aldermen and the board of estimate and apportionment. The plaintiff continued ostensibly in the position of chief draughtsman until May 1, 1903, when, by a special order issued by the fire commissioner, bearing date April 25, 1903, he was appointed assistant superintendent of buildings at a salary of $1,950 per annum. When the payroll for December, 1902, was made out, it had on it plaintiff’s name, as chief draughtsman, at a salary of $1,950 per annum, and was so certified by the municipal civil service commissioners. On receipt of the payroll by the comptroller, the latter refused to recognize the position of chief draughtsman and pay salary therefor; and he altered the payroll by striking out the name of plaintiff, his position and salary, and substituted therefor the name of plaintiff as architectural draughtsman at a salary of $1,500 per annum. This latter position, it will be remembered, was the position from which the plaintiff resigned on December 8, 1902, to accept, it may be assumed, tbe position of chief draughtsman. It is not shown that the comptroller possessed authority for such action. From December 8, 1902, however, down to May 1, 1903, when plaintiff was lawfully appointed assistant superintendent of buildings, he received from defendant compensation at the rate of $1,500 per annum. It is the claim of the defendant that the comptroller had no power to invest the plaintiff anew with the position of architectural draughtsman, and that he was without office from the time of his resignation on December 8, 1902, until May 1, 1903. The record now before us seems to furnish ample support for this claim. It is not our purpose, however, to determine that question on this appeal. There are other grounds which, in our opinion, demand a reversal of the judgment, and we leave that question open for determination upon the evidence that may be adduced at a new trial. It clearly appears that the board of estimate and apportionment never created the office of chief draughtsman, nor fixed a salary to such position. Upon this state of facts, it was the duty of the court below to dismiss the complaint. Section 10 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1902, chap. 436), section 56 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1902, chap. 435), and section 1543 of the Greater New York charter (Laws of 1901, chap. 466), make it incumbent uponx the plaintiff to prove that his salary was fixed by the board of aldermen and the board of estimate and apportionment. Failing this, he was not entitled to recover.

Davis and Clinch, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  