
    Brian G. Hughes, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
    
      Waiver by an employee of the city of New York of any claim for compensation for set vices rendered by Mm as a notai'y public to the city.
    
    Where the counsel to the corporation of the city of New York has expressly notified the employees in his office that such employees who were notaries public would not thereafter receive any compensation for services rendered to the city as notaries public, and such employees continue in the employ of the city without making any protest against the ruling and without making any charge for services rendered by them as notaries public, a jury is justified in finding that they consented to the conditions imposed by the corporation counsel and that the services thereafter performed by them as notaries public were voluntarily performed and imposed no obligation on the city to pay therefor.
    Appeal by: the plaintiff, Brian G. Hughes, 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 19th day of Ho v ember, 1902, upon the verdict of a jury.
    
      L. Lajlin Kellogg, for the appellant.
    
      Chase Méllen, for the respondent.
   Ingraham, J.:

• The plaintiff’s assignor was an employee in the office of the counsel to the corporation of the city of Hew York, and the complaint alleges that while so employed he duly performed certain services as such notary public, to wit, the taking of acknowledgments, depositions and affidavits, and the swearing of claimants upon claims against the defendant in the manner and form required by law, and for -which, under and by virtue of the laws of the State of New York, he was. entitled to be paid a certain fixed compensation or charge for- each and all the said affidavits, depositionsand acknowledgments so taken,”- and that the total amount due to the plaintiff’s assignor for' such services as fixed by law is the sum of • $5,500.. ..

The defendant denies the rendition of the services,- and for a. further defense alleges that “ at all the times mentioned in said complaint, the said William H. Brady (plaintiff’s assignor) was' an employee in the office of the Counsel to the Corporation of the city of New York, and whatever services, if any, were rendered by said William H. Brady were rendered by him voluntarily and without any agreement between said William H. Brady and the defendant. Or defendant’s officers, that he was to receive compensation therefor.”' Upon the trial it was admitted that between the years 1889 and. 1895 William H. Brady was a notary public; and at the request of the counsel to the corporation of the city of New York, or his assistants, he “ administered the oath to persons signing and swearing-before him to affidavits in legal proceedings to the number of 16,477" and subscribed his name to said affidavits as having been sworn- to- and subscribed in his presence, which said affidavits were used in legal proceedings, pending in the office of the Corporation Counsel.”' The defendant then introduced evidence that Brady, up to the time-of his death and for about fifteen years prior thereto, had been, employed in the office of the corporation counsel.; that during the time he was in the office lie rendered bills for services as such notary public to December 12, 1899 ;" that, after that time he did not ren-. der any bills; that at that time the counsel to the corporation issued written instructions that thereafter the counsel -to the-corporation, would pay for no notary’s fees in the office; • that, this instruction, was communicated to Brady, who made no objection and thereafter-rendered no bills for notarial services;. that Brady received a regular salary from the city of New York up .to the time.of his death. This instruction to the chief clerk was introduced in.evidence and is as follows :■ ; . . . •

“ Sir.— I notice in. the last .bill-submitted to me for petty expenses-several items-for fees of Notaries Public .who are regularly employed in this.office at a stated salary. I beg to notify you that I will not. ■approve ■ or certify any vouchers for you after this date, which includes any süm as fees paid to persons in this office for the taking ■of affidavits or verifications.” ■

This evidence was not denied, and the court thereupon submitted the question to the jury as to whether the services were rendered by Brady without a promise, on the part of the corporation counsel, or upon the part of the city, to pay Brady for his services, charging the jury that they would have the right to infer that Brady did .promise, by remaining silent, to take these affidavits voluntarily — ■that is, without compensation, and that it was not fair that he should be paid, or if he did not so promise, he was entitled to his pay. To that portion of the charge the plaintiff excepted and requested the court to direct a verdict- for the plaintiff for the services rendered, which motion was denied, whereupon the jury found a verdict for the defendant.

In Merzbach v. Mayor (163 N. Y. 16) it was held that an employee in the district attorney’s office who rendered services as a notary public by administering oaths and taking acknowledgments required by the People in the various proceedings connected with the criminal business of the county was entitled to recover the fees allowed by law for acting as notary, unless the defendant established a waiver; that the situation of the parties was such as to require slight evidence to establish an implied agreement that the plaintiff was to make no charge' for acting as notary; that the burden of proof, according to the pleadings, as - well as the undisputed facts, rested upon the defendant to show that there was an understanding between the parties that the plaintiff should not charge for his services. That case was reversed because the court instructed the jury that the burden was upon the plaintiff of showing, that there was no such agreement. The answer in that case was substantially the same as in this; and it was not quéstibned there that, if under proper instructions the jury had found that there was an implied agreement that the notary should perform the services without compensation he would not be entitled to recover.

The jury have found in this Case that there was such an implied agreement. And if such an implied agreement existed, then it ■would seem to follow that the plaintiff’s assignor had performed the services voluntarily and was not entitled to recover. Brady was an employee in the office of the counsel to the corporation, receiving a stated salary for his services from the city of New York. The fact that he was a •notary public and .thus able to render to the city the Services appertaining to that office would be a Consideration, in determining whether or not he should be employed and the compensation that he should receive, and .there certainly would be no objection to his accepting the employment in the corporation counsel’s office or continuing in that employment upon condition that he should render his services as notary public when required without compensation, in addition to his regular compensation from the city. When the corporation counsel expressly notified the employees in the office that thereafter the employees, who were also notaries public, would not be entitled to receive any compensation for services performed for the city as such notaries public, and. the employees acquiesced in that notice, and continued in the employ of the city without making any charge for' services rendered as such notaries public, the jury were justified in finding that they consented to the condition impósed by the corporation counsel, and that the services as notary public thereafter performed were volun-' tarily performed and without any obligation on behalf of the city to pay therefor; and the jury, under proper instructions, having found that such an implied agreement existed, the plaintiff was precluded from recovering from the city what Brady would have been entitled to receive but for the existence, of that implied agreement. The right of a notary public to recover his .fees is based upon an implied contract to pay therefor (McCann v. City of New York, 52 App. Div. 358; Fisk v. Jefferson Police Jury, 116 U. S. 131); and when the implication, of .such an agreement is rebutted by evidence which justifies a finding .that .the person-performing the services agreed that he would not be'-entitled to additional com-O pensation for the services rendered,, the basis of the claim '.falls. When Brady was informed- by ;the chief clerk in the .office of the corporation counsel that the city would thereafter pay no fees to any employee for services rendered as .notaiy public, and-acquiesced in that ruling by remaining .silent and ;by .continuing to perform the notarial duties without protest, .there was evidence from which ..the jury; could"find "tliat"lie'performed .the services under the conditions imposed by the appointing power, and justified them in finding that the services were performed under an implied agreement that thereafter he was to receive no compensation for his services in addition to the regular salary paid to him by the city.

We think the answer was sufficient to raise the question; that a question of fact was presented which justified its submission to the jury, and that the verdict of the jury was sustained by the evidence.

It follows that the judgment appealed from should be affirmed, with costs.

O’Brien, McLaughlin, Hatch and Laughlin, JJ., concurred.

Judgment affirmed, with costs. 
      
      Sic.
     