
    John McGough, Respondent, v. The City of New York, Appellant.
    
      New York city—action for sala/ry by an assistant fire marshal accepting the position under an appointment “without compensation vntil otherwise m'dered."
    
    In an action brought against the city of New York to recover compensation for services rendered by the plaintiff as assistant fire marshal from June 30, 1900, to May 1, 1901, the complaint alleged that on June 30, 1900, the plaintiff delivered to the fire commissioner of the city of New York an instrument signed by him, stating: “In the event of my appointment by you as one of the assistant fire marshals in- the Fire Department of the City of New York, boroughs of Manhattan and The Bronx, I agree to waive all claim against you for salary or compensation for my service in such capacity in the'event that Joseph M. F. Otis, who was removed by you on the 7th day of May, 1900, from the position of assistant fire marshal upon charges of attempted blackmail should he be restored to said position by an order from the court; ” that on the same day the plaintiff received the following instrument of appointment from the fire commissioner: “John McG-ough is hereby appointed as Assistant Fire Marshal, borough of Manhattan and Bronx, in this Department, without compensation until otherwise ordered, to take effect from July 1, 1900; ” that on July 1, 1900, he entered upon the performance of his duties as assistant fire marshal and continuously performed said duties until a date subsequent to July 1, 1901; that on May 16, 1901, there was delivered to the plaintiff an order directing “ That the said John McGough be paid a salary at the rate of fifteen hundred (1500 00/100) dollars per annum from May 1, 1901;” that from July 1, 1900, until May 1, 1901, the plaintiff received no compensation whatever; that the proceedings instituted by Joseph F. Otis for his reinstatement had resulted unsuccessfully to him and that he had not recovered any salary or compensation from either the defendant or from the fire commissioner.
    The complaint further alleged that at the times mentioned in the complaint there was a position in the fire department known as that of assistant fire marshal, but it.did not allege that there was any salary attached to such position.
    
      Held, that the complaint was demurrable;
    That, as the appointment accepted by the plaintiff provided that he should serve "without compensation until otherwise ordered,” and, as the order fixing the plaintiff’s salary expressly provided that such salary should run from May 1, 1901, the plaintiff was not entitled to recover compensation for services rendered by him previous to that time.
    Appeal by the defendant, The City of New York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of February, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.
    
      Theodore Connoly, for the appellant.
    
      A. S. Gilbert, for the respondent.
    
      
      
        Sic.
      
    
   Ingraham, J.:

The plaintiff brings this action to recover compensation as assistant fire marshal from the 30th of June, 1900, to the 1st of May, 1901. The complaint alleges that at the time therein mentioned there was a place, office or position in the Fire Department of the City.of New York” known as assistant fire marshal, whose duties were to assist as might be necessary the fire marshal in the fire department of the city of New York in the performance of his duties as specified and designated in the charter of the city of New York; that on the 30th day of June, 1900, the plaintiff addressed and delivered to the fire commissioner an instrument signed by him, in which he stated that “ in the event of my appointment by you as one of the assistant fire marshals in the Fire Department of the City of New York, boroughs of Manhattan and The Bronx, I agree to waive all claim against you for salary or compensation for my .service in such capacity in the event that Joseph M. F. Otis, who was removed by you on the 7th day of May, 1900, from the position of assistant fire marshal upon charges of attempted blackmail should he be restored to said position by an order from the court; ” that after the delivery of this communication and on the same day the plaintiff received an appointment from the fire commissioner, of which the following is a copy :

■ “ Special Orders No. 70. (Extract) * * *
“ John McGough is hereby appointed as Assistant Fire Marshal, borough of Manhattan and Bronx, in this Department, without compensation until otherwise ordered, to take effect from July 1, 1900.
“ By order of J. J. SCANNELL, Commissioner.
“ August T. Dockarty, Secretary.” '

That on Julyl, 1900, the plaintiff entered upon the performance of his duties as assistant fire marshal, and continuously performed said duties until a date subsequent to July 1, 1901; that on May 16,1901, there was delivered to the plaintiff what is called “ Special Orders No. 60,” by which it was ordered “That the said John McGough be paid a salary at the rate of fifteen hundred (1500 00/100) dollars per annum from May 1, 1901.” That from July 1,1900, until May 1, 1901, the plaintiff actually performed services as assistant fire marshal ; that Joseph F. Otis has not recovered any salary or compensation from either the defendant or from John J. Scanned, as fire ■commissioner; that the proceedings brought by said Otis for reinstatement resulted unsuccessfully to said Otis and that the plaintiff has not received any compensation whatever for the services rendered by him from the 1st day of July, 1900, until the 1st day of May, 1901.

To this complaint the defendant demurred upon the ground that it does not state facts sufficient to constitute a cause of action, which demurrer was overruled by the court below, and the defendant appeals.

While the complaint alleges that there was a place, office or position in the Fire Department of the City of New York, established and scheduled by the Municipal Civil Service Commission of the City of New York and included in Schedule F, known as Assistant Fire Marshal,” there is no allegation that to that position there was any salary attached by law or by the municipal authorities, and we are referred to no statute that creates this position or that fixes a salary to which the occupant of the position is entitled. Upon these allegations the plaintiff would be simply an employee of the department entitled to receive the compensation fixed by the commissioner. I know, however, of no rule which prevents a person accepting an appointment to such a position in one of the departments of the city from agreeing to serve, either without compensation or at a compensation fixed by the commissioner at the time of the employment. This appointment accepted by the plaintiff, and under which he became an employee of the city, provided that the plaintiff should serve without compensation until otherwise ordered.” There is nothing in the appointment which connects it with the letter written to the commissioner or that makes his right to compensation in any way depend upon the failure of Otis to obtain a reinstatement to the position from which he had been removed, and I can see no reason why this plaintiff, if he so agreed, should not work for the city without compensation until such time as the commissioner should provide that he should be paid for his services. If, when the plaintiff was appointed, his compensation had been fixed at $100 a year, and, subsequently, the commissioner by an order had increased his salary, it could hardly be claimed, I think, that he could recover the sum that the commissioner had subsequently fixed as the compensation that he was to receive in the future, and if he was appointed upon condition that he was not to receive compensation and accepted the appointment upon that condition, I can see no reason why he should not be bound thereby. Subsequently, the commissioner did fix the compensation that the plaintiff was to receive in the future, but that order made no provision for compensation to be paid for the services rendered before May 1, 1901. It this employment had been by a private corporation and had been accepted by an employee upon the condition expressed in the order appointing the plaintiff which had been acted on until the corporation saw fit to fix the amount that the employee was to receive in the future, there could be no question but that the condition under which the employee accepted the employment would control, and until the amount that he was to receive was fixed he would not be entitled to compensation for his services. I can see no reason why the same rule should not apply to a municipal corporation in relation to the services of an employee. The commissioner had express power by the charter (Laws of 1897, chap. 378, § 1543) to fix the compensation of the employees of the department, and his order fixing such compensation was binding on the plaintiff.

It follows that the judgment appealed from must be reversed, with costs, and the demurrer sustained, with costs, the plaintiff to have leave to amend the complaint upon the payment of the costs in this court and in the court below.

Van Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.

Laughlin, J. (concurring):

I fully concur with Mr. Justice Ingraham, but am also of opinion that the plaintiff was not entitled to recover for another reason. At the time he was appointed without pay, he was not entitled to the position as matter of right. It does not appear that the fire commissioner was obligated to fill the position at that time; and even if he were, he was not confined to appointing the plaintiff, but was entitled to have additional names certified by the municipal civil service commission and to make his selection therefrom. The plaintiff, in order to insure his own selection, offered to take the position without holding the fire commissioner responsible for his salary, and the commissioner consented to his appointment upon the understanding that the city even was not to be obliged to pay for his services until a permanent appointment should be made. In this manner the plaintiff obtained the position, and thus insured his right to a permanent appointment when one should be made.

Judgment reversed, with costs, and' demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court below. 
      
       Sic.
     