
    Harris Wines, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.
    (Argued June 21, 1877;
    decided September 25, 1877.)
    This was an action to recover a balance alleged to be due plaintiff upon his salary' as an attendant upon the Marine Court, in the city of New York. (Reported below,, 9 Hun, 659.)
    Plaintiff was, as alleged in the complaint, appointed an attendant in 1862, and served until May, 1873. The board of supervisors, in 1866, fixed his salary at $1,200. Said board, by resolution passed May 27, 1870, fixed the salaries of attendants upon said court at $1,500. Plaintiff was, however, only paid thereafter at the rate of $1,200, and sues to recover the balance. It was claimed on behalf of the city that, under section 3, chapter 382, Laws of 1870, which prohibits the board of supervisors from creating any new office or from increasing salaries of those in office, that said resolution of the board was illegal. Held, untenable, upon opinion of court below.
    No formal proof was made on the trial of plaintiff’s appointment, although put in issue; no attention was called, upon the trial, to the defect, but the appointment appears to have been assumed. Upon the argument of the appeal, formal record proof was presented of a regular appointment. Held, that the fact having been assumed on trial, might be assumed at all future stages of the case; also, that, for the purpose of upholding the judgment, such proof could be given on argument of the appeal, the court citing Rockwell v. Merwin (45 N. Y., 166); Stilwell v. Carpenter (62 id., 639); Jarvis v. Sewall (40 Barb., 449, 455).
    
      D. J. Dean, for appellant.
    
      Elliot Sandford, for respondent.
   Earl, J.,

reads for affirmance.

All concur.

Judgment affirmed.  