
    ADAM MOSER, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellants.
    
      An attendant upon the Marine Court of New Yorh is an. officer thereof — chapter 382 of 1S70 — chapter 582 of 1870 — when the respondent cannot produce before the appellate court, documenta/ry evidence to sustain the judgment.
    
    An attendant of the Marine Court of the city of Mew York holds an “office ” within the meaning of that term, as used in section 3 of chapter 382 of 1870, prohibiting any increase in the salaries “ of persons then in office, or their successors.”
    Where, upon the trial of an action brought by one, claiming to have been appointed an attendant upon the Marine Court, under a particular act, to recover the salary attached to such office, his attention is specifically called to the fact that he has failed to prove an appointment thereunder, he cannot, upon the hearing of an appeal taken by the defendant, from a judgment rendered against it, introduce documentary evidence to prove that in fact he was appointed thereunder.
    Appeal from a judgment in favor of the plaintiff, entered on a verdict directed at the Circuit.
    
      W. G. Whitney, for the appellant.
    
      Jacob A. Gross, for the respondent.
   Baeeett, J.:

The plaintiff was appointed an attendant of the Marine Court, on or about the 1st of April, 1868. His salary was fixed at $1,200 per annum, which has been fully paid in monthly installments of $100. Iiis present demand is for an additional sum of $25 per month, which he claims under a resolution of the board of supervisors, passed in the year 1870, fixing the salaries of these attendants at $1,500 per annum. After the adoption of that resolution the pay-rolls were made out as formerly, and the plaintiff regularly receipted each month for $100 in full. He did this, however, under protest, and always demanded the additional sum. The resolution in question covered the attendants of the Supreme Court, the Superior Court, and the Court of Common Pleas, as well as of the Marine Court. It seems to have been adopted in the face of the prohibition, against increasing the salaries “ of persons then in office or their successors,” contained in chapter 382 of the Laws of 1870 (§ 3). That the plaintiff was a person “ then in office,” within the spirit of the act, and the mischief aimed at, cannot well be doubted. Besides, these court officers are not in any just sense servants of the judges. Their number, appointment and salary are regulated by law. Them duties, e. g., the preservation of order, and the care of juries, are public, well defined and by no means menial. They have nothing to do with the cleaning or heating of the court-rooms. Such functions are performed by subordinate employees of the city. The weight of authority favors this view. (Sweeny v. The Mayor, 5 Daly, 274; affirmed, 58 N. Y., 625 ; The People v. Nostrand, 46 N. Y., bottom of p. 381; Rowland v. The Mayor, 44 N. Y. Super. Ct., 559 ; Bouvier, title “ Office ;” Burrill’s Dic., title “ Office;” and see the able and elaborate MS. Opinion of Chief Judge Daly in Clark v. The Mayor.) In Wines v. The Mayor (9 Hun, 659) it was thought that Sweeny v. The Mayor was shorn of part of its authority by certain remarks of Mr. Justice Allen in two later cases. (Holley v. The Mayor, 59 N. Y., 166, and Brennan v. The Mayor, 62 N. Y., 365.) We agree with Chief Judge Daly in his analysis of these two cases (in Clark v. The Mayor), and as the Wi/nes case has since been affirmed without any suggestion that the court intended, in either the Holly or the Brennan case (where indeed the question was not necessarily involved), to overrule the direct authority of Sweeny v. The Mayor, we must conclude that the latter is still unshaken.

It is insisted, however, that so far as the Marine Court is concerned the prohibition in- question was removed by an act having special reference to that court, which was passed a few days later (May 2, 1810). The language of this act (Laws of 1810, ch. 582, § 3) is as follows :

“ Sec. 3. The existing provisions of law relative to the appointment of the clerk, his assistants and deputies, are continued in force. The court shall have power to appoint such other assistants, stenographers, interpreters and attendants as the board of supervisors may from time to time, Toy resolution, authorize to be so appointed, who shall respectively be paid at such rates as may be fixed by the said board of supervisors.”

This undoubtedly authorized the supervisors to fix the salaries of such other attendants as, under tibe cmthority of thei/r resolution, might subsequently be appointed by the court. The difficulty with the plaintiffs case is, that he did not show any such appointment. He rested upon his original appointment in 1868. His attention was specially called to the omission by the fourth ground upon which the defendants moved to dismiss his complaint. He now seeks to cure the defect of proof by offering ns, upon the present appeal, an extract from the proceedings of the board of supervisors of December, 1811. Hnder these circumstances, such evidence cannot, properly be now received. It was held in the Wines case (10 N. Y., 614), that for the purpose of upholding a judgment, formal proof of an appointment could be given on the argument of the appeal. This was for the reason that no attention had been called to the defect, ujpon the trial, the appointment having been assumed throiighout. Here, there was a motion to dismiss on the specific ground, which was overruled and an exception taken. Non constat but if the proof had been put in, the defendants would have met it by other evidence. The ease cannot be retried in this manner upon an appeal. Further, we have looked at the document' and are by no means clear as to its supposed conclúsiveness. It appears that the Marine Court distinguished between appointees under prior laws, and the “ other ” attendants authorized by the act in question. They are placed in separate lists. In the one, the appointments purport to be made by the judges alone. In the other, the act is specifically referred to, the appointments are styled “additional,” and are made “ subject to tlie confirmation of the board of supervisors.” Wines was among these additional appointments, which accounts for the ruling in his case. The plaintiff was in the other list, and it does not appear that he was confirmed by the board, or indeed that the hoard was ashed to confirm him. The list of independent appointments would seem to have been furnished, not for official action thereon, but for the information of the hoard, so that being thus apprised of the number of attendants then in office, the supervisors might judge advisedly as to the propriety of confirming the proposed, list of additional officers. It is such other or additional attendants, so appointed by the court under the authority of the supervisors’ resoT/wbion, who are to be paid at rates to be fixed by the board. But even if tbe plaintiff were included in the action of the board, his rights thereunder would date but from the confirmation in December, 1871, which fact of itself would seem to necessitate a readjustment of the damages.

In any view of the case, there should be a new trial, with costs to the appellant to abide the event.

Davis, P. J., and Brady, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.  