
    The People of the State of New York ex rel. Mortimer F. Gleason, Respondent, v. John J. Scannell, as Fire Commissioner of the City of New York, Appellant.
    
      Civil service—in determining whether .an appointment'to office will involve, an ■ expenditure in excess of the a/mount to which the expenses of a department are limited, illegal payments should he excluded — de facto officers—had faith in oficial appointments not presumed.
    
    In determining whether the appointment in November, 1897, and in December, 1897, by the fire commissioners of Long Island City of seventy-four members of the fire department was invalid, in that it involved an expenditure in excess of §40,000, the limit fixed for- the expenses of the department ■ (Laws of 1890, chap. 232, §§ 4, 7, as amd. by Laws of 1894, chap. 122), the salaries paid to the • ten firemen appointed at the close of the year 1896; in contravention of the express prohibition of the civil service laws, and who were dismissed in November, 1897, must be regarded as still, constituting part of the fund — an adequate remedy being provided for the recovery of such money from the municipal officers responsible for its unlawful payment, of which it must be presumed that -the city has availed itself. Such ten men are not to be considered as defacto incumbents of the positions held by them, in such wise that the payments of their salaries to them were lawful.
    Moneys paid out of the.fire department fund, in violation of section 39 of title' 11 of the charter of Long Island City (Laws of 1871, chap. 461), providing that “All work to be done and all supplies to be furnished for the corporation, . involving an expenditure of more than one hundred dollars, shall be by contract founded on sealed bids, or on proposals made in compliance with public notice for the full period of ten days,” must also be regarded as constituting part of the fund.
    The Appellate Division will not assume that the appointment of the seventy-four members of the fire department in November and December, 1897, was made in bad faith and for the purpose of embarrassing the administration of the greater city of New York, created on January 1, 1898, especially where it appears that the authorities of" the greater city removed the seventy-four men so appointed and put in their place fifty-three men whose combined salaries were greater than the combined salaries of the seventy-four men removed.
    Appeal by the defendant, John J. Scannell, as fire commissioner of the city of New York, from a judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Queens on the 3d day of April, 1900, upon the verdict of a jury rendered by direction of the court, determining the issues raised by the return to an alternative writ of mandamus theretofore issued in the proceeding, and also from a final order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 20th day of March, 1900, granting a motion for a peremptory writ of mandamus requiring the defendant to reinstate the relator in the position of fireman in the fire department of the city of New York.
    
      James MeKeen and George I. Hives, for the appellant.
    
      William W. MacFarland [Nelson Smith with him on the brief], for the respondent.
   Goodrich, P. J.:

We should content ourselves with an affirmance of the judgment -on the opinion of Mr. Justice Garretson, hereto appended, except for the fact that the learned corporation- counsel raised on the argument of the appeal a new point for reversal, which does not appear to have been presented at the trial. He contended that “ the attempted appointments of members of.the Fire Department of Long Island, on and after November 24, 1897, were not made in good faith but were intended to embarrass and control the management of the Fire Department of the Greater City of New York, and were, therefore, illegal and void.”

The facts are not in dispute. On November 17, 1897, ten members of the fire department of Long Island City were dismissed for alleged illegality of appointment made in violation and contravention of the civil service regulations governing Long Island Oity. On the same day the lire commissioners passed a resolution requesting the board of civil service examiners forthwith to hold competitive examinations for merit and fitness for various positions in the fire department. In response the civil service commissioners," on November twenty-fourth, November twenty-sixth, November twenty-ninth and December twenty-seventh, presented certified eligible lists for such positions, and all the persons thus certified, seventy-four in number, were immediately appointed members of the fire department. Six new engine companies, three, hose companies and three truck companies were established; eighty men were assigned thereto and the compensation of the appointees fixed from and after December twenty-fourth at certain specified rates. The corporation counsel contends that this was ■ virtually the creation of a new fire department for Long Island City just previously to the time when that municipality was merged in Greater New York.

As the point was not made at the trial, we have nothing in the-record other than the simple facts above stated, upon which we are asked to infer an intention On the part of the fire department commissioners to embarrass the new administration. As ten firemen were dismissed on concededly proper grounds, we may assume that it was necessary immediately to appoint others in their places. If it were necessary, we might assume that the relator was one of the very persons actually appointed in the place of some one thus dismissed.

The growth of Long Island City up to that time is not proven, the necessities of the department are not shown, as such facts might have been produced by the relator if the point in question had been raised at the trial. . It was also alleged in the petition, and not disputed, that the number of men (including the relator and his .associates) in the employment of the department was no greater than was actually required for the operation of the department. This view receives emphasis from the fact that it was alleged' in the moving papers, and was not disputed, that immediately upon the removal of the relator and his associates, fifty-three firemen from the borough of Brooklyn were sent by the fire department of the greater city to the borough of Queens and substituted in their places to do the work of the fire department in that borough, and that the combined salaries of these new men were greater than those of the relator and his associates. This furnishes strong evidence that the appointment of the relator and his associates by the fire department of Long Island City was not only not intended to embarrass the new municipality, but that in the judgment of the latter’s fire department there was actual necessity for.the entire force as it was constituted when the new city absorbed Long Island City.

Besides, we cannot gratuitously assume evil intentions on the part of the fire commissioners of Long Island City, where the presumption that public officials properly discharge their duty holds in law until the contrary is shown.

The charter of Long Island City contained no limitation of the number of firemen to be appointed other than that which was imposed by the limitation of the amount of the annual appropriation of $40,000 for the expenses of the department. If we should reverse the judgment, we would practically hold that if dishonest officials had entirely depleted the fire department fund ipso facto, the members of the departmént would be removed from office or compelled to serve without compensation. We are not prepared to take such a position, and: therefore, we approve the reasoning of the . opinion of Mr. Justice Garretson, and affirm the judgment, with costs.

All concurred, except Jenks, J., taking no part.

Final order affirmed, with fifty dollars costs and disbursements. 
      
       The following is the opinion of Garretson, J., delivered at the Queens -County Trial Term:
      ■Garretson, J.:
      The final determination of this proceeding is dependent upon the legal status •On November 17, 1897, of the fund allowed for the maintenance of the fire department of Long Island City for the year 1897, when the relator and others, were appointed to the position of firemen in such department.
      Upon the facts as shown upon the trial of the issues raised by the return to-the alternative writ of mandamus, "the qualifications of the relator and his-eligibility to appointment under the Civil Service Law, and the regulations of Long Island City adopted in pursuance thereof, were clearly established and were not questioned, nor have they been disputed upon the argument. The-proof of payments made from the fund and of liabilities chargeable thereto-would, however, seem to show that such appointment was in violation of sections 4 and 7 of chapter 282 of the Laws of 1890, as amended by chapter 122 of the Laws of-1894, in that the liabilities of the department for that year would have thus been created in excess of the limit of $40,000. The relator has challenged the legality of certain of such payments and has charged that they were made in violation of express prohibition of law, and this challenge having been accepted by the defendent, the only questions raised and contested by the parties-have thus been presented for my more careful consideration and judgment. The impression received upon the trial, and in accordance with which a verdict for the relator was directed, remains unchanged in substantially all .essential particulars and is founded upon the reasons hereinafter briefly set forth.
      Ten men were appointed as firemen at the close of the year 1896, who were paid from the fund in the aggregate the sum of $4,165.08. They had not complied with the civil service regulations, and having been summarily removed were refused reinstatement by the court upon the ground that their appointment was for that reason invalid. (People ex rel. Lee v. Gleason, 32 App. Div. 357.)
      The moneys paid to them for salaries were not properly chargeable against the fund. Such payments were made in contravention of the express prohibition of the Civil Service Law (Laws of 1883, chap. 354, § 7, as amd. by Laws of 1894, chaps. 354, 681). An ample remedy being given against the municipal officers responsible for the unlawful payments, it must be presumed that the city has availed itself of such remedy, and that no deficit in the fund to that extent-exists. (Id.; Koelesch v. City of New York, 34 App. Div. 98.) It is'urged by the. defendant’s counsel that the ten men appointed in 1896, while acting as firemen, were defacto incumbents of the positions held by them, and that the payments made to them must be held to have been properly made by. the city as against the relator. The cases cited by the counsel (Terhune v. Mayor, 88 N. Y. 247; Dolan v. Mayor, 68 id. 274; McVeany v. Mayor, 80 id. 185; Demarest v. Mayor, 147 id, 203) do not sxrstain this contention and are not applicable. They were actions brought by an officer who had been unlawfully removed or excluded from his office and was afterward adjudged to be entitled thereto, who sought to recover compensation for the period during which he was deprived of his office, and it was held that the compensation having been paid to another, who held defacto during the interim, the city was not liable because the payment to the de faato officer was properly made and that the plaintiff must seek recovery from him. None of the ten men referred to was holding in place of the relator. The inquiry in this proceeding is as to the legal status of the fund pt the time of relator’s appointment, and the question of the validity of his appointment necessarily involves tke-determination of the legality of payments made therefrom. Moneys paid thereout, or sought to be made chargeable thereto, in direct violation of an express prohibition of statute, must be regarded, for the purposes of this proceeding, as still in the fund.
      The relator has also taken the position that the payments made to Fabric Fire Hose Company, D. Schultz, Astoria Machine Works, William J. McKinney, F„ X. Fallon & Co., Thomas P. Hunt and East River Gas Company were also made; in violation of law and are not chargeable against the fund. They are each im excess of §100.
      It was provided by the revised charter of Long Island City as follows: “All work to b.e done and all supplies to be furnished for the corporation, involving an expenditure of more than one hundred dollars, shall be by contract founded on sealed bids, or on proposals made in compliance with public notice for the full period of ten days, and all such contracts when given shall be given to the lowest responsible bidder giving adequate security. All such bids or proposals shall be opened by the heads of departments advertising for them, in the presence of the mayor, and such of the parties making them as may desire to be present.” (Laws of 1871, chap. 461, tit. 11, § 29.)
      It has been neither claimed nor proven that the provisions of the section quoted had been complied with preliminarily to the procuring of the work to be done and of the supplies to be furnished, which were the subject of the several payments last mentioned.
      The defendant has endeavored to sustain these payments notwithstanding, •upon the ground that the bills therefor were incurred in good faith and that to have refused to pay them would have been bad in morals.
      He also asserts .that they were recoverable in an action upon a quantum meruit, and cites, among other inapplicable authorities, Leonard v. Long Island City (47 N. Y. St. Repr. 761). That case arose upon a demurrer to a complaint, and section 29 of title 11 of the revised charter of Long Island City was not considered, and presumably was regarded as having been complied with.
      The learned justice who wrote the opinion cites as controlling authority 
        Kramrath v. City of Albany (127 N. Y. 675), wherein the rule is recognized and stated to be: “When the mode of contracting is limited and provided for by statute, an implied contract cannot be raised. But a corporation, like an individual, is liable upon a quantum meruit, when it has enjoyed the benefit of the work performed, or goods purchased, when no statute forbids or limits its power to make a contract therefor.”
      This rule and its corelative, that when a contract for work or the purchase of goods has not been made by public letting as required by statute, the city is not liable for the work or the goods, and no subsequent ratification is effective to make it so, has also been applied in McDonald v. Mayor (68 N. Y. 23); Smith v. City of Newburgh (77 id. 130); Swift v. Mayor (83 id. 528), and Walton v. Mayor (26 App. Div. 76).
      For the purposes of this proceeding all of the payments herein mentioned must be regarded as having been made in violation of law, and upon invalid claims against Long Island City, and should not be considered as effective to reduce the amount to the credit of the fund provided for the maintenance of the fire department of said city in the year 1897.
      The defendant’s motion to set aside the verdict is denied, and judgment is directed to be entered thereon in favor of the relator, with costs.
     