
    Eugene M. Holley, Respondent, v. The City of Mount Vernon, Appellant.
    Second Department,
    December 30, 1910.
    Municipal corporation — common council — delegation of power — ratification of contract — constitutional law — employment of sexton for cemetery outside corporate limits.
    The common council of a city cannot delegate its power to employ men on behalf of the city. .
    Where a common council by resolution authorizes the board of health to employ a man to “ take charge and keep in order the public cemetery * * * at a compensation not to exceed Twenty-five dollars per month ” it necessarily excludes the idea of any other or fúrther compensation to the employee for-doing the work. ■ •
    Where the health officer of the board of health, assuming to act under the resolulion, employed a man to take care of "the cemetery at twenty-five dollars a month and a stated sum for each grave dug by him, to'be collected of those requesting the service, the receipt and payment by the common council of the caretaker’s bills of twenty-five dollars a month did not constitute a ratification of the action of the board of health in hiring him on the terms stated. The contract as made was not authorized by the resolution.
    Where it appears that the cemetery was not owned by the city and was outside its limits, the employment of a sexton therefor by the city is,in violation of section 10, article 8 of the State Constitution. ' ■
    "Hirschberg, P. J., and Thomas, J., dissented.
    Appeal by the defendant, The City- of Mount Vernon, from a judgment of the County Court of Westchester county in favor "of the plaintiff, entered in the .office of the clerk of said county ori the 13th day of January, 1910, upon the verdict of a jury, and also . from an order entered in said clerk’s office on the 19th day of Jan-. • uary, 1910,,denying the defendant’s motion for a new trial made upon the minutes.
    
      Frmilc A. Bennett, for the appellant.
    
      Sydney A. Syme, for the respondent.
   Woodward, J.:

There is absolutely- no legal or equitable reason why this plaintiff should recover in this action., He claims to have been employed under a resolution of the common council of the defendant in 1893 to “take charge and keep in order the public cemetery adjoining St. Paul’s Cemetery at Eastchester at a compensation not to exceed Twenty-five dollars, per month,” and to have filled this position up to 1898* .when., he was 'called before the mayor to explain what he was being paid for, and that at this time some' one told him to go on with the work but to withhold' his bills, and that this unknown someone told-him it would be all right, and that he then went on with the employment, without mentioning the matter to-, anyone for a period of forty-nine months,’wlien he brought in a bill for.the sum of $1,225. The-defendant declined-to pay-the bill and this action was-brought, the jury-having returned a verdict for the full amount of the claim. • ' ■

Assuming for the purposes • of this discussion that the city of Mount Vernon owned the cemetery* and was charged with the'duty of caring for the same,, the employment. alleged in the complaint is not the employment'which the resolution of the common council directed, nor that which it may be..deemed to have ratified. The resolution of the. common council was that “ the Board of Health of this City be, and they hereby are authorized, empowered and directed to employ on behalf of this City, a Sexton to take charge and keep in order- the public cemetery adjoining St: Paul’s Cernetery at Eastchester at a compensation not to exceed Twenty-five .dollars .per-month until such time, as this' City-can properly acquire title to said. property, and a sexton therefor is-duly and legally employed.” “Compensation” is defined-as “ A recompense or reward for some loss, injury,-or service, especially when it is given by statute.” (6 Am. & Eng. Ency. of Law [2d ed.], 369.) When the common council of Mount Vernon enacted that the board of health -should be authorized to hire a man “at a compensation not to exceed Twenty-five dollars per month,” it necessarily excluded the ■ idea of any other or further compensation for taking charge of and keeping “ in order the public cemetery,” and yet the plaintiff’s complaint -alleges* and ' the testimony supports the allegation, that the contract made with the plaintiff by the health officer of the board of health was that “ prior to the 15th day of December, 1898, the plaintiff-was engaged by the defendant through its duly-authorized officers to act as City Sexton at Mount Vernon City Cemetery, at Eastchester,'M. 'Y., at the-compensation of $25.00-per month,. and as compensation for liis services in keeping the said City Cemetery in order he was to be allowed the receipts for opening graves, being $10 for an adult and Five. Dollars for an infant or child. But that said plaintiff was only to charge for and retain the amount aforesaid for digging graves for such persons as should pay for the same, and was compelled to dig open and care for graves ior all persons and for the class designated and known as pauper graves he was to receive no other or greater compensation than the sum of $25.00 per month.” The record shows that during the time that the plaintiff claims to have been employed under this alleged contract, he received many thousands,of dollars for digging graves for persons who were able to pay for the same, and he received these sums because of the fact that he was in charge of the cemetery under this alleged employment.

It is not seriously questioned that the common council could not delegate the power to employ the plaintiff to the board of health, assuming that it was authorized to employ him at all, but the case was submitted to the jury on the theory that the defendant could ratify the action of the board of health in hiring the plaintiff. The evidence shows that the health officer of the board of health, assuming to act under the authority of the resolution of the common council above quoted, entered into the contract alleged in the complaint with the plaintiff, and that he reported “ having employed Eugene M. Holley as keeper of the cemetery at Eastchester,” and that On motion the Health Officer’s action was approved.” There is nothing here to show that the board of health ever had any notice that the contract gave to the plaintiff the authority to keep to his own use revenues which-belonged to the cemetery organization, or to the employer of the.plaintiff,' and "the only evidence attempted to be adduced in support of a ratification of the common council is found in the bills which were presented and paid by that body during the years from 1893 to 1898. These bills gave no notice of the contract entered into between the health officer and the plaintiff ; they read: To services as city sexton from March, 15th to April 15th, 1894, $25.00.” .The only possible ratification, therefore, is the ratification of the employment of the plaintiff to “ take charge and keep in order the public cemetery,” while the contract actually made with the plaintiff was that he was to have-twenty-live dollars per month for digging pauper graves and keeping them in order, and whatever he could make out of other people who made use of this cemetery. In other words, the contract which was made was not to employ the plaintiff as the common council directed, at a compensation not exceeding twenty-five dollars^ for taking charge and keeping in order the cemetery, but was to pay to the plaintiff that sum for doing a part of the work, permitting him to exact ten- dollars for adult graves and five dollars, for infant graves.. This was clearly extra compensation, to which he was entitled only because of his employment and the authority assumed to have been given him by the health officer, and this contract does' not appear ever to have been called to the attention of the board of health' or of the common council.. • Clearly the contract made was neither authorized in the first instance nor ratified, .and the effort of the plaintiff, after keeping quiet for a period of forty-nine months, during which it is not shown that any one in authority in the city of Mount Vernon knew that he was pretending to do anything under this alleged employment, to exact the sum of one thousand two hundred and twenty-five dollars from the people savors strongly of fraud, which ought not to be encouraged by any leniency, on the part, of the courts.

• But there is a more fundamental difficulty with the plaintiff’s cause of action, and that is that neither the pleadings'nor the proofs show' any authority on the part of the city of Mount Vernon to employ a “ Sexton to take charge and keep in order the public cemetery adjoining St., Paul’s Cemetery at Eastchester, * * * * until such time as this City can properly acquire title to said property and' a sexton therefor is duly and legally employed,”, for the very good reason that it appeared upon the face of this resolution that the city of Mount Vernon did not- own this cemetery,- and the evidence' clearly indicated that the title was in some one other than the defendant* The Constitution of this State provided (Const. [1S84] ■ art. 8, § 11), and now provides (Const. [1894] art. 8, § 10, as amd. in 1899, 1905, 1907 and 1909) that “No county, city, town or village shall hereafter give any .money or property, or" loan .its money or credit to or in aid of any individual, association or corporation,” .and if ..the cemetery in question did not -belong to the defendant, then it clearly had no authority under the Constitution to employ a city sexton to “ take charge and keep in order the public cemetery ” at Eastchester, at' a compensation not exceeding twenty-five dollars per month. That was giving to an individual, association or corporation money or credit in aid of its own affairs, and it likewise further violated the same section of .the Constitution, which further provided and now provides, “ nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes.” It may be conceded that the Legislature might provide that a municipal corporation should own and control a cemetery, and that if this was done a cemetery might be a city purpose, but that does not affect the question here presented, from the fact that the Legislature has not authorized the defendant to own and control a cemetery-either within or without the limits of the city, and it clearly appears that the cemetery here in question does not belong to the municipality, nor is it within its jurisdiction.' It might be that the municipality would have the .authority to hire some one to .dig a grave or graves for paupers at any point where it could procure the right of such interment, but this is not what the common council attempted to authorize ; it directed the hiring of a “ sexton to take charge and keep in order the public cemetery ” at Eastchester,. and this cemetery was. used for-the burial place of persons living anywhere in that local ity for miles around. The contract was thus to take charge of and keep in order a public cemetery, the title to which , was not in the city, and the location of which was outside of said city, and within the limits of another municipality. In its legal aspects, the authority might as well have been to take charge of an.d keep in order Greenwood Cemetery, and no one would contend that this was- a “city purpose” for’ Mount Vernon. It was held in Riley v. City of Rochester (9 N. Y. 64) that the village of Ho Chester, having the power by its charter (Laws of 1826, chap. 140, § 1) “ of purchasing, holding and conveying any estate, real or personal, for the public use óf said corporation,” was not thereby authorized to hold lands beyond its boundaries to be used as a highway, and we are of the opinion that the authority found in the charter of the city of Mount Vernon,(Laws of 1892, chap. 182, § 166,"sUbd. 14) “To purchase, hold, sell, convey and agree to purchase and convey real estate, when ever necessary or expedient for the accomplishment or execution of any of the purposes or powers 'or duties mentioned in this'act,” does not operate to give authority to own a. cemetery outside óf the •limits of the city; where there is no mention of such a purpose or power or duty in the act. It is possible, as suggested by Dillon on Municipal Corporations (4th ed. § 565), that the power might be ■implied to hold land for cemetery purposes Outside of the limits óf a city if the city itself was authorized to own a cemetery, but where ■there is no authority in the charter for a municipal'cemetery, I think it would' be carrying implied powers a long way to hold that the municipality might own the: cemetery in question. But that is. not necessary to bé decided here, for it appears affirmatively that the city did not own the premises at the time of making the alleged contract with the plaintiff; and nothing appears to show that it 'has . since been acquired, ■ so' that the case as it is here presented is whether the city of Mount Vernon had the power to contract' for a 'sexton for a cemetery outside of'it's own limits, and owned' and controlled by some other corporation or individual. ■ '

. The judgment and order appealed from should be reversed and a new trial ordered, costs to.abide the.-event. :

•Burr and Carr, JJ., concurred ; Hirschberg, P. J., and Thomas, J., dissented. . . ’;

Judgment and order of-the County Court of Westchester county • reversed and nevv trial ordered, costs to abide the event.  