
    Henry Merzbach, Resp’t, v. The Mayor, Aldermen and Commonalty of the City of New York, App’lt
    
      (New York Common Pleas, General Term,
    
      Filed November 5, 1894.)
    
    New York city—District attorney—Fees op notary.
    In the absence of proof of an appropriation for such purpose, the district attorney of the city and county of New York has no implied authority, as a public officer, to subject the municipality to a liability for services of a notary public.
    Appeal from a judgment for the plaintiff upon a verdict in Ms favor, and from an order denying the defendant’s motion, made upon the minutes, for a new trial.
    ■ Action to recover his statutory fees as a notary'to which the plaintiff claimed to be entitled for services performed by him at the request of the district attorney of the city and county of New York, in and about the necessary and proper administration of the affairs of the latter’s office, and while the plaintiff was employed as a clerk or messenger in said office at a salary payable from the city treasury.
    
      William H. Clark (David J. Dean and Wm. A. Sweetser, of counsel), for app’lt; Herman Frank, for resp’t.
   Bischoff, J.

In the absence of positive inhibition a public officer is authorized to incur, on behalf of the body politic of which he is the representative, such expense as may be reasonably necessary to a proper performance and discharge of the duties imposed upon him. People ex rel. Gardenier v. Board of Supervisors of Columbia Co., 134 N. Y. 1; 45 St. Rep. 311. He is not personally liable for the expense so incurred, People v. Board of Supervisors of N. Y., 32 N. Y. 473; and if he has defrayed it he is entitled to reimbursement. Id.: Bright v. Chenango Co., 18 Johns. 242; Powell x. Newburgh, 19 id. 284; U. S. v. Flanders, 112 U. S. 88; People v. Monroe Co., 15 How. Pr. 225; Throop on Public Officers, § 495; Am. & Eng. Ency. of Law, vol. 19, p. 540. By express provision of the Revised Statutes (Banks Bros. 7th ed., vol. II, pp. 978, 979, subds. 2 and 9 of § 3, title 4), “the fees of the district attorney, and all expenses necessarily incurred by him in criminal cases arising within the county,” and “.the moneys necessarily expended by any county officer in executing the duties of his office, in cases in which no specific compensation for such services is provided by law ” are made proper charges against the county; and by § 27 of the Consolidation Act (chap. 410, Laws 1882), all proper charges against the county of New York are made such against the corporation of the city and county of New York.

One who is employed to render services of a particular kind cannot, in the course of such employment, be required to render services of a different character and distinct from those which he has engaged to perform ; and if he is commanded by his employer to perform services requiring special qualification, skill and capacity, unconnected with his regular employment, an implied promise arises to pay him, by way of additional compensation, what those services are reasonably worth. Woods Master and Servant, § 86; Lawson’s Rights, Rem. & Pr., vol. 1, §§ 254, 257. The same rule obtains in the public service. Throop on Public Officers, § 492; Am. & Eng. Ency. of Law, vol. 19, p. 500, and cases in note 4; Mayor, etc., v. Muzzy, 33 Mich. 61; Am. Rep. 670; U. S. v. Brindle, 110 U. S. 688; Converse v. U. S., 21 How. U. S. 463; 62 U. S. 192.

Notwithstanding, however, our approval of the foregoing propositions, we reach the conclusion that the plaintiff’s recovery should not prevail, and that it was error to deny the defendant’s motion for a nonsuit:

The district attorney is a county officer, and his office a county office. People ex rel. Gardenier v. Board of Supervisors of Columbia Co., 134 N. Y. 1; 45 St. Rep. 311; People v. Board of Supervisors of N. Y., 32 N. Y. 473; MacDonald v. The Mayor, etc., of N. Y. 32 Hun, 89. The district attorney of the county of New York is, however, also a city officer within the meaning of the Consolidation Act (chap. 410, Laws 1882). By chap. 304, Laws 1874 (Consolidation Act, § 26), the political divisions known as the city and the county of New York were constituted one body corporate and politic and from thenceforth all county officers were city officers as well. People ex rel. Schultze v. Myers, Comptroller, etc., 61 Hun, 500; 41 St. Rep. 150. Sections 46 and 47 of the Consolidation Act (chap. 410, Laws 1882), require all “heads of departments,” “boards” and “officers” of the city so. to regulate their expenditures as not to exceed the yearly appropriation, and inhibit the incurring of any expense for which no appropriation was previously made. In the absence of proof of such an appropriation, therefore, it cannot be said that the implied authority of ■the district attorney, as a public officer, to subject the municipality to liability for the plaintiff’s services, was extant. No.such proof was adduced on the trial. Hence the facts did not constitute a cause of action against the defendant. In MacDonald v. The Mayor, etc., 32 Hun, 89, upon which case counsel for respondent here partly relies, the element of an appropriation was present..

The judgment and order should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.  