
    Eugene F. Lethbridge, Resp’t, v. The Mayor, etc., of New York, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 26, 1892.)
    
    1. Municipal corporations—Appointment to office where salary DEPENDS UPON SPECIAL APPROPRIATION.
    Plaintiff was notified on the 18th of May, 1886, by the commissioner of public works that he was promoted from the position of laborer, and appointed clerk in the department of public works, at $1,000 per year, “ to be paid from the appropriation for repairing and renewal of pipes, slop cocks, etc., salaries.” There had been an appropriation for this purpose of $50,000 for the year 1887, but it was exhausted December 31, 1887, and no appropriation made for Í888 and 1889. He was notified by the commissioner when the appropriation was exhausted that on that account he was suspended. Notwithstanding this, plaintiff obtained judgment against the city for his salary for over two years. Held error.
    8. Same.
    When the commissioner made the appointment he had in view the provisions of law wkicli limited his power to create an obligation against the: city beyond or in excess of the sum specifically appropriated for that purpose, and the plaintiff must be deemed to have accepted the appointment with the same-understanding and the same limitations.
    3. Same—Removal—Right to a he ailing—Consolidation act, §48.
    The provision of the statute giving a clerk or officer the right to a hearing and an opportunity to make an explanation, is wholly inapplicable to-a case where the removal was made for the reason that the appropriation applicable to the payment of the salary has been expended.
    Appeal from judgment of the New York superior court, general term, amending judgment rendered in favor of plaintiff upon, a trial by the court without a jury.
    
      Sidney J. Cowep,, for app’lt; É. 0. Chetwood, for resp’t.
    
      
      
         Reversing 39 St. Rep., 385.
    
   O’Brien, J.

The plaintiff has recovered a judgment for salary, at the rate of $1,000, per annum, for the period of two years,, six months and nineteen days, from the 20th day of January, 1887. Daring that period he rendered no service, hut claims that as he had not been removed from the position he was entitled to-the salary. On the 15th of May, 1886, the commissioner of public works notified the plaintiff, in writing, that he was promoted from the position of laborer and appointed clerk in the department of public works, at $1,000 per year, “ to be paid from the-appropriation for repairing and renewal of pipes, stop cocks, etc.,, salaries.” There is no dispute as to the fact that the board of estimate and apportionment in the year 1886, appropriated for the-, purpose above mentioned $50,000 for the year 1887. This appropriation was exhausted on the 31st of December, 1887, except the-sum of $116.89, and no appropriation whatever for this purpose was made for the years 1888 and 1889, so that during the period for which the plaintiff has recovered his salary, there was no fund available for its payment.

The plaintiff was not appointed to an office with a fixed salary or compensation, but a clerkship in the department of public works. The power of appointment and of fixing and regulating the salary to be paid was conferred upon the commissioner and the plaintiff’s employment was not fpr any fixed period of time. The nature and tenure of the appointment must be governed by the law on that subject in force at the time it was made and the letter of appointment must he read in connection with the following provisions of the consolidation act:

“ § 46. * * * No expense shall be incurred by any of the departments, boards or officers thereof, unless an appropriation shall have been previously made covering such expense, nor any expense in excess of the sum appropriated in accordance with law.”
“ § 47. It shall be the duty of the heads of all departments of' said city, and of all boards and officers charged with the duty of' expending or incurring obligations payable out of the moneys-raised by tax in .said city, so to regulate such expenditures for any purpose or object, that the same shall not in any one year exceed the amount appropriated by the board of estimate and apportionment for such purpose or object; and no charge, claim or liability shall exist or arise against said city for any sum in excess of the amount appropriated for the several purposes."’

The appointment of the plaintiff was accompanied by a statement that his compensation was payable from a specific appropriation which was then made. This impliedly, but necessarily, limited -the term of plaintiff’s employment to a period when that appropriation was available to pay the salary.. The plaintiff must be deemed to have accepted an appointment with full notice that his salary was payable only from a special and designated appropriation and that when this appropriation was exhausted his employment should terminate, in the absence of a. new appropriation lor the same purpose. When the commissioner made the appointment he evidently had in view the provisions of law which limited his power to create an obligation against the city beyond or in excess of the sum specifically appropriated for that purpose, and the plaintiff must be deemed to have accepted the appointment with the same understanding and the same limitations.

Whenever, therefore, the appropriation from which the plaintiff’s salary was payable was exhausted and the authorities failed to make a new one for the same purpose, the commissioner had the right, and it was his duty to terminate the employment, to the end that a liability or obligation should not accrue or be created against the city in excess of the sum appropriated for the purpose. This is further emphasized by § 48 of the consolidation act: The number and duties of all officers and clerks, employees and subordinates in every department, except as otherwise herein specifically provided, with their respective salaries, whether now fixed by special law or otherwise, shall be such as the heads of the respective departments shall designate and approve ; but subject also to the revision of the board of estimate and apportionment; provided, however, that the aggregate expense thereof shall not exceed the total amount duly appropriated to the respective departments' for such purposes.” The board of •estimate and apportionment made no farther appropriation for the payment of the plaintiff’s salary, and when the money available, at the time of his employment, became exhausted the commissioner addressed a letter to him stating that, “ In consequence of an insufficient appropriation, and a necessary reduction of force, you are hereby suspended from the position of clerk from this date.” Whether this notice was called a suspension or a dismissal is of very little consequence. It operated to terminate the plaintiff’s employment and right to salary from that date. The contingency provided for in the terms of the plaintiff’s appointment and in the law, namely, the exhaustion of the appropriation, had happened and the power and duty of the commissioner to terminate the employment, at least until another appropriation was made, was unquestionable,.and the exercise of this power furnishes to the plaintiff no legal or just ground of complaint. It may -be that undet the operation of the civil service rules the plaintiff might be entitled to be restored to the position when a new appropriation was made, and when it became lawful to fill the place again, but his right to draw any more salary from the-city ceased when the appropriation was expended and the plaintiff had notice of it. Donovan v. Mayor, etc., 33 N. Y., 291; McDonald v. Mayor, etc., 68 id., 23; Dunphy v. Mayor, etc., 8 Hun, 482.

But it is urged that the plaintiff could not be dismissed or his. right to remain'in the position and draw the salary terminated without giving -him an opportunity to be heard, under the first paragraph of § 48 of the consolidation act. The plaintiff was certainly informed of the cause of his removal, and the only thing wanting in this case to furnish a full compliance with that section is the circumstance that the plaintiff was not “allowed an opportunity of making an explanation.” The provision of the statute giving a clerk or officer the right to a hearing and an opportunity to make an explanation is wholly inapplicable to a case where the-removal was made for the reason that the appropriation applicable-to the payment of the salary has been expended. The right to-make an explanation in such cases necessarily implies that the cause of removal is to be some dereliction or general neglect of duty, or incapacity to perform the duties, or some delinquency affecting his general character and his fitness for the office or place. The provision has no application to a case where the in-cumbent was dismissed for want of funds or in order to reduce-expenses, and when at the time of the dismissal he has notice of that fact. People, etc., v. Fire Commissioners, 72 N. Y., 445-449; People, etc., v. Fire Com'rs, 73 id., 437; Phillips v. Mayor, etc., 88 id., 245.

The supreme court, upon certiorari to review the action of the department of parks in discharging clerks without complying with the requirements of this statute, gave to it a construction which, we think, is a just and reasonable one. The learned judge who gave the opinion states with great clearness the reasons for the enactment of the statute, its general policy and the cases to-which it applies. “ The limitation contained in this statute is in= the interest of the public, which is best promoted by keeping in the service honest clerks who have attained experience in their employment, and besides, it is a matter of justice to the employee-himself, whose summary displacement and the appointment of another in his place may give rise to an implication of infidelity or unskillfulness on his part, which an examination and explanation might have wholly dispelled.

“ But no such reasons exist when a clerk is discharged from the public service because the moneys appropriated by the body charged with that subject are insufficient to keep up the clericals force to the standard which had obtained when larger appropriations were made, or when for such cause his services are no-longer needed.

“ The notice is indispensable, and an opportunity should be afforded to the clerk to make an explanation when such explanation might prevent the proposed removal.

“ It is quite evident that the section applies only to cases where the removal is proposed to be made without just cause personal to the party, or when it is sought arbitrarily and without adequate reason, to substitute another person in the place of one proposed to be removed.” People, etc., v. Board of Parks, 60 How. Pr., 130.

The cases of Gregory v. Mayor, etc., 113 N. Y., 416; 22 St. Rep., 703, and Emmitt v. Mayor, etc., 128 N. Y., 122; 38 St. Rep., 907, do not apply. In both cases it was held that an incumbent, of a public office, suspended without cause but not dismissed, was entitled to his salary during the period of suspension. In these cases the plaintiff had not been dismissed by reason of the expiration of his term of employment, or for want of funds, or upon a hearing, and, therefore, they form no guide in the disposition of this.

The judgment of the general and special terms should be reversed and a new trial granted, costs to abide the event.

All concur.  