
    Henry Merzbach, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
    
      A salaried subordinate of a Sew York district attorney — he cannot recover extra pay for services as a notary.
    
    A person occupying a subordinate position in the office of the district attorney of the city óf New York and receiving a salary fixed by law, comes within the provisions Of section 28 of article 3 of the Constitution, enacting that the Legislature shall not, nor shall the common council of any city nor any board of supervisors, grant any extra compensation to any public officer, servant or. contractor; and he is not entitled to recover of the city of New York fees for oaths, which, while in this position, he administered as a notary public in various proceedings in which the People was a party; certainly where it does not appear that such services were rendered under any agreement for their compensation made by the district attorney, and where, before rendering them, he had presented to the,comptroller of the city a bill for like services previously rendered, which had been rejected.
    Appeal by the plaintiff, Henry Merzbach, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 21st day of April, 1896, upon the verdict of a jury,land also from an order entered in said clerk’s office on the 16th day of April, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      William Victor Goldberg, for the appellant.
    
      Theodore Connoly and Terence Farley, for the respondent,
   Ingraham, J.:

We do not think that the plaintiff, was entitled to recover.

The plaintiff occupied a subordinate position in the office of the district attorney of Hew York, and as such came within' the provisions of section 28 of article 3 of the Constitution, which provides, that the Legislature shall not, nor shall the common council of any city, nor any board of supervisors, grant any extra compensation te any public officer, servant or contractor. The plaintiff as the holder of such position in the district attorney’s office, received, during the period in which he performed the' service for which he asks te recover, a salary fixed by law and which was duly paid to him by the-city and county of Hew York. It also seems that during the period that he held this position, he was a notary public, and as such administered various oaths in various proceedings in which the People were parties. Some of these affidavits thus verified were affidavits of the district attorneys in office during the period, and others the affidavits of assistants, clerks or witnesses. He seeks to recover in this action against the city of Hew York for the legal fees as notary for officiating as such in taking these affidavits. He does not pretend that there was any arrangement made with the district attorney or any of his assistants by which he was to be paid for such services as notary, in addition to the compensation fixed by law for the services- that he rendered in the office of the district attorney; and the inference that there was any such understanding is negatived by the fact that, before the services'for which he now seeks to recover were rendered, he had presented a bill for affidavits taken by him to the comptroller, who refused to pay it, and thus any liability had been repudiated by the city. He testified to various conversations with District Attorneys Martine and Fellows about these charges, but in none of them does he claim that there was any direct agreement by the district attorney that he should be paid for these services in addition to the compensation allowed to him by law and which has been paid to him. He refers us to no statute which makes the fees of a notary for services thus rendered to the district attorney or to his employees a county charge, or which justifies us in holding that this person, an employee in the district attorney’s office, is entitled, for the services that he renders to the district attorney, to additional fees over arid above the regular compensation allowed to him by law, and which has been fully paid to him. Ho appropriation has been made to pay these charges. It seems to me that his- claim is entirely unauthorized, and that, under the provision of-the Constitution, neither the Legislature, the common council nor a board of supervisors could grant him extra compensation for these services. Much less is he entitled to recover for them when there was no agreement to pay for them.

We are now dealing with a claim made by an employee in a public office to be paid a sum of money, in addition to the compensation allowed him by law, for services rendered in the office in which he was employed, and - during office hours when his time belonged to the public. ■ He presents no statute authorizing him to render the services, or to receive compensation for such services in addition to that allowed to him by law; and no public officer, authorized to employ him or to incur a liability for which the city is responsible, has directed him to perform the services or agreed that he should be compensated for them. The fact that there had been appropriated by the board óf apportionment a. sum of money for each of the years that the plaintiff held such position for the contingencies of the district attorney’s office would not authorize any one holding a position in the office to appropriate any portion of such money without the express authorization of the district attorney, or some express employment by him to render a particular service in aid of the district attorney in the administration of his office. Here was an employee who was paid to perform -certain services to the district attorney. During that time he also acted as a notary public in the office, without any express agreement as to the payment of his fees and with express knowledge that the city repudiated ■any obligation to pay him for such services. After such repudiation of liability on behalf of .the city, he proceeds to take such affidavits, without insisting upon- payment -of the fees for such service, and without being -employed to ■ render the service by the person responsible for the administration of the office ’ and the expenditure of the public money appropriated for the proper .conduct of the office; and then makes a claim for the fees in addition to the salary allowed by law for his services. • ■ .

What is it that entitles this plaintiff to hold the city liable for anything in addition.to the salary fixed by law and which he was paid ? There was no understanding with the district attorney that he was to be paid anything in addition to his salary. Except -so far as the'district attorneys thémselves occasionally verified an affidavit ¡ before him, no responsible officer required that he should render special and extra services outside of those imposed upon him by virtue of Ms position He did not receive any specific instructions from the district attorney to act as notary in the cases in the office. While there he swore in anybody that wanted to be sworn. Under these circumstances it seems to me that what he did was voluntary as a part of the services to be rendered in consequence of his employment, and nothing .appears to justify the conclusion that for such services as notary public he was to receive additional compensation. The inference on the contrary, is all the other way. By upholding such a claim as this, a most lax and dangerous system would be approved by which public officials could obtain payment from the public for services not authorized by their superiors, and for which no compensation is fixed by law. Such a system would prevent any regular control of the public, expenditure by those in whom that responsibility is vested by law. There was no promise, express or implied, that the plaintiff should be paid by the public for his-services as notary, and whatever service was rendered by him was clearly voluntarily rendered as an incident to his employment in the office, and for which the salary that he was paid must be accepted as sufficient compensation.

I think that, upon the evidence, the plaintiff was not entitled to recover, and the judgment should be affirmed.

Rumset and O’Brien, JJ., concurred.

Parker, J. (dissenting):

' The plaintiff, who was a salaried employee in the office of the district attorney of Hew York from about January 1, 1884, to December 31, 1890, brings this action to recover notary fees for administering oaths or affirmations, and taking acknowledgments required to be taken in the discharge of official duties imposed upon the district attorney, and at his request.

The period covered by plaintiff’s claim extends from July 11,. 1885, to December 31, 1890, and the notarial fees, at the rate provided by statute, aggregates the sum of $375.02, or an average of about twenty-two cents per day. Prior to June 11,1885, the plaintiff performed services as a notary public in the office of the district attorney, and he presented a bill for such services to the Comptroller, which was disallowed. Thereafter, he kept an account of every service rendered by him as-a notary public, whether administering oaths or taking acknowledgments,' and, after his employment ceased, which was December 31, 1890, he presented a bill to.the comptroller for such services, and, that officer having refused to pay his claim, he commenced this action. That, as notary public, he administered the oaths and took the affidavits and acknowledgments-for which he seeks recovery, is not questioned. And that the district attorney had the authority to incur these expenses in behalf of ■the county, and that all such expenses were chargeable against the People by the corporation of the city of. Hew York, is conceded. The answer, among other things, alleges as a defense, that the plaintiff was an employee in the office of the district attorney, and what•ever services,, if any, were rendered by the plaintiff, were rendered voluntarily and without any agreement that the plaintiff was to receive ■compensati on .therefor. The record contains evidence tending to show that the plaintiff’s services as notary public were rendered voluntarily ; but, because of testimony to the contrary on the part of the plaintiff, it cannot be held, as matter of law, that the services thus rendered were voluntary. The plaintiff testified that in May or June, ■1885, he told Mr. Martine, then district attorney, that one of the bills for notary fees that he had marked .correct had been rejected by the comptroller, and the district attorney answered me, I ought to get paid. You are entitled to it.” He also testified to a conversation with District Attorney Fellows, in the latter part of Í889, in which plaintiff requested him to O. K. one of his bills, and said that he then handed it to the district attorney’s private secretary to send over with other bills to the comptroller’s office. And again, “I told Ool. Fellows once I- would keep an account. He didn’t ¡answer me ; it was after that that he O. K.’d one of the bills for me; I rendered bills for.those services.” Further reference to the evidence is unnecessary, as it already appears that there was sufficient ■evidence tending to show that the rendition of notary services by the plaintiff was not intended by him to be voluntary, and that District Attorneys Martine and Fellows so understood it, as to pre¡sent a question of fact for the jury.' It should b.e said in passing that District Attorney Fellows denied having. O. K.’d any bill for the "plaintiff, and that he understood that the services were rendered voluntarily and because of the fact that the plaintiff was receiving a salary as an employee in the district attorney’s office. If the question had been submitted to the jury whether the services were rendered voluntarily, a verdict for the defendant could not now be disturbed; but instead the jury was instructed as follows :

If you find, as matter of fact, that the plaintiff was requested by the district attorney to take these affidavits and acknowledgments, •and that it was either" expressly or impliedly agreed that he should be compensated for his services in addition to the salary he received, you may find a verdict for the plaintiff.
“ If, on the other hand, yon find that there was no such understanding, express or implied, it will be your duty to find a verdict in favor of the defendant.”

The court also charged the jury that the burden was upon the plaintiff on all the issues. The jury were, therefore, instructed in effect that the burden was on the plaintiff to establish that there was an understanding, express or implied, that the plaintiff should be compensated for his services as notary in addition to his salary as employee. The instruction of the court would undoubtedly be correct if the services of the plaintiff were incidental to his services as messenger, or were part of his duties as messenger; but the plaintiff testified as to what constituted the duties of messenger, as he was advised by the district attorney, and his testimony in that respect is not contradicted. The rule laid down by the court would also be correct, if the plaintiff had been requested to render services other than those belonging to his duties as messenger, provided he was not called upon, in the doing of it, to perform a duty incident to some other public office held by him. The plaintiff, in addition to being a messenger in the district attorney’s office, held a public office, to wit, that, of notary public. That office lie obtained, not from the district attorney, but by an appointment from the Governor. The statute fixes the fee which, as notary public, he was entitled to receive for administering an oath or affirmation, and for taking an acknowledgment. His right to compensation for services as notary public did not grow out of any contract, but was an incident of his office, and arose from the rendition of the services. The plaintiff could voluntarily perform the duties as notary public for his employer, but it cannot be assumed that he did so — it must be proved. When requested to administer an oath or take an acknowledgment he became entitled, after the rendition of the services, to the fee which the statute provides. The principles governing contracts, express or implied, have no application to such a situation, and the party receiving the benefit of official services of such a character cannot successfully resist payment by asserting that it was not expressly or impliedly agreed or understood that the .officer should be compensated for his services. ¡Nor can a jury be permitted to speculate that, because of the friendly or other relations between the parties* the person seeking the services of the notary did not expect to pay him, and that, therefore, there was no contract, either express or implied, that he should. Undoubtedly a notary may voluntarily waive his right to the fees which the statute gives him, and if he does so he cannot afterwards reconsider and recover them. The only proof which he needs to make in order to establish his right to recover fees for services rendered as a notary, is tó show the rendition of the services upon the. request of the party from whom recovery is sought, It will constitute a defense to show that the services were voluntarily rendered, but the burden is upon the defendant to establish it. The plaintiff,, in this ease, excepted to an instruction, in substance, that the burden was upon the plaintiff to show that it was either expressly or impliedly agreed that he should be compensated for his services as notary public. .This exception was well taken.

The judgment should be reversed and a new trial granted,' with costs to abide the event. .

Williams, J., concurred.

Judgment affirmed, with costs.  