
    William J. Stenson, Plaintiff, v. The City of New York, Defendant.
    (Supreme Court, New York Trial Term,
    April, 1903.)
    New York city — An “ orderly ” of the department of correction cannot recover a “ keeper’s ” salary although detailed to do his work.
    A person duly appointed in 1897 by the head of the New York city department of correction as an “ orderly ” in the workhouse on Blackwell’s Island, but who in the next month was told by the warden of that workhouse to report at Hart’s Island and who there performed for nearly two years the duties of a “ keeper ”, an office having an annual salary attached, cannot recover of the city the difference arising out of the higher salary of a keeper where there is no evidence that the head of the department ever made any appointment of the orderly as keeper or delegated to the warden power to make it or evér had actual or constructive notice of it.
    Action for salary.
    J. W. Finch, for plaintiff.
    G. L. Rives, Corporation Counsel, for defendant.
   Gildersleeve, J.

The plaintiff was employed in the department of correction and he sues for the difference in pay between the amount actually received by him for his services and that which he claims is due to him for such services. The case was tried before the court, without a jury. About August 19, 1897, plaintiff was duly appointed an “orderly” in the workhouse on Blackwell’s Island, at a salary of $300 a year. On or about September 16, 1897, the warden of the workhouse looked over the list of employees and picked out plaintiff’s name and told a subordinate to direct plaintiff to report to Hart’s Island the next day for duty. ■ Plaintiff did so report, and he claims that he there performed the duties of a “keeper” from September 17, 1897, to July 21, 1899. The defendant denies this in it's answer, but there is evidence sufficient to sustain plaintiff’s claim in this respect. The salary of “ keeper ” was $800 per annum. Plaintiff, however, during said period from September 17, 1897, to July 21, 1899, received only. $300 a year, for which he duly receipted, and continued to receive such salary until about October 28, 1899, when he resigned his place “as orderly.” He brings this action for $916.67, as the difference between the pay of an “orderly ” and that of a “ keeper,” during the said period from September 17, 1897, to July 21, 1899. Under the then existing statutes (Charter of 1897, § 1543) the heads of departments had the power to appoint and remove the employees and subordinates in their respective departments. The head of the department of correction was the commissioner of correction. It is not pretended that the commissioner, either in writing or orally, appointed the plaintiff to the position of “ keeper,” or changed the amount of salary, as, under the statute, he had the power to do, subject to the approval of the board of estimate and apportionment. The only claim of plaintiff is that a subordinate of the commissioner, i. e., the warden, orally directed the assignment of plaintiff to duty as a “ keeper.” The position of “ keeper ” seems to have been an “ office,” within the meaning of the authorities, as the employment does not appear to have been transient, occasional or accidental, and the salary fixed was by the year. The position was not a menial one, such as a janitor or servant, nor was the incumbent a per diem laborer whose employment might be evidenced by a mere verbal direction to go to work at prevailing rates. It would, therefore, seem to come within the authority of the case of People ex rel. Barry v. Keller, 30 Misc. Rep. 52, where the late Justice McAdam used the following language, viz.: “The controlling authorities hold that an appointment to public office must be in writing, or in the form of a resolution of the appointing board duly entered in its records.” In the case at bar not only was the alleged appointment not in writing, but it was not made, as we have seen, by the appointing officer, i. e., the commissioner. There is no evidence here that the commissioner delegated to the warden the power to make appointments or raise salaries, although apparently, under the charter of 1897, he could delegate such power of appointment to his subordinate. Charter of 1897, § 694. In the case of Graham v. City of New York, 33 Misc. Rep. 56, Mr. Justice McAdam wrote as follows, viz.: “ In order to establish a legal demand against the municipality, even for services rendered, there must first be an employment by lawful authority.” The learned counsel for plaintiff claims that in accepting plaintiff’s services as “keeper,” the city ratified the act of the warden. It is not shown, however, that the commissioner of correction ever received notice of such employment, either actual or constructive. It may be true that the warden had general supervision of both the workhouse at Blackwell’s Island and Hart’s Island, as claimed by plaintiff’s counsel, but he had no authority, so far as here appears, to raise plaintiff from the position of “ orderly,” at $300 a year, to that of “keeper,” at $800. In the.case last above quoted, Hr. Justice HcAdam proceeded as follows, viz.: “A person dealing with the agent of a municipal corporation has no right to presume that he is acting within the line of his duty, but must take care to learn the nature and extent of his authority. * * * The civil service rules, made pursuant to statute, * * * would be defeated entirely, if the courts were to hold that so long as one employed by a city official does work he is entitled to recover from the municipality irrespective of the question whether the employment was in accordance with, or in violation of such rules. Such) a principle * * * would leave open the sole inquiry whether services had been rendered, and eliminate as irrelevant the question whether they were performed under a valid or illegal employment.” The corporation counsel refers me to the case of McCunney v. City of New York, 40 App. Div. 482, where it was held that a person employed by a municipal corporation in a particular capacity, as to which the law has fixed the compensation, must be paid in that capacity, and not for work of different kind to which he may be detailed. The plaintiff’s counsel claims that this case can be distinguished from the case at bar for the reason that “ HcOunney was a driver in the street cleaning department, whose salary was fixed by statute at a sum not to exceed $720 per annum, while Stenson’s salary as ‘ orderly ’ was fixed By the commissioner, subject to the approval by the board of estimate and apportionment.” In that case the late Justice Rumsey said: “ The statute fixes the compensation for the position to which the man is appointed, and, when it is so fixed, the fact that he does work of a different kind is of no importance, because no party has a right to change the obligations which the statute creates.” In the case at bar the salary was fixed by the commissioner, with the approval of the board of estimate, and the warden had no right to change the obligation which was thus created, so that the fact that plaintiff was detailed to do work of a different kind is unavoidable since such detail was not authorized by the commissioner or even brought to his knowledge. Under the circumstances of this case, and in view of the authorities above cited, I am of opinion that the complaint must be dismissed. Judgment accordingly. Give notice of settlement.

Judgment accordingly.  