
    George Morgan, Appellant, v. The City of New York, Respondent.
    First Department,
    March 11, 1910.
    Municipal corporations—right of employee to recover for services rendered in taking acknowledgments—burden of proof.
    A person receiving a salary as a messenger in the bureau of -buildings of the city of Hew York, who is also a commissioner of deeds, is entitled to recover from ■ the city for services rendered in taking acknowledgments unless such services were rendered gratuitously or as part of his regular duties. In a suit to recover for services rendered in taking such acknowledgments, the burden is upon the city to show that they were rendered gratuitously or as part of his regular duty. In the absence of such evidence, the plaintiff is entitled to recover on showing that the services were rendered outside of the hours of service in his official position and that he has not been paid.
    Appeal by the plaintiff, George Morgan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of thé county of Mew York on the 7th day of April, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of April, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Alfred J. Talley, for the appellant.
    
      Cla/renoe L. Barber, for the respondent.
   McLaughlin, J.:

The plaintiff, between the 1st of October, 1901, and the 6th of Movembér, 1903, was a commissioner of deeds of the city of Mew York, and as such administered an oath and certified the same to 27,500 affidavits made by various persons in or having business with the bureau of buildings in the city of Mew York. During that time he was a messenger in that department of the city government, receiving a salary of $1,500 a year. He claims that the affidavits were sworn to before him before office hours and that he is entitled to the statutory fee Of twelve cents for administering each oath and certifying each affidavit, and he brought this action to recover the same from the city. The city denied his right to" the relief asked and alleged affirmatively, among other things, that the services rendered were a part of his regular duties and that the same were rendered voluntarily and without any agreement between him and the city for any compensation over and. above his regular salary. The city had a verdict in its favor and from the judgment entered thereon- and an order denying a motion for a new trial plaintiff appeals. On a former trial a verdict was directed in favor of the defendant, which was affirmed by this court (Morgan v. City of New York, 115 App. Div. 893), but the order of affirmance and the judgment of the trial court were reversed by the Court of Appeals and a new "trial ordered (190 N. Y. 237), the court holding that the plaintiff was entitled to recover for the services rendered by him as a commissioner of deeds in administering the oaths and certifying the same, unless such services were performed with the understanding that they should be part of his duty as a messenger in the department, for which he received a salary.

The testimony on the part of the plaintiff — and no evidence was offered on the part of the defendant — tends to show that the plaintiff claimed, during all of the time that'the services were rendered, that he was entitled to compensation. He kept a written memorandum of "the time and the title of each case in which he had.administered an oath and certified the same. He stated to Class, who was the chief clerk in the bureau of buildings, on several occasions that he claimed that he was entitled to compensation.

It also appeared that Wallace, the commissioner of buildings during a part of the time when the services were rendered, knew that plaintiff claimed compensation outside of his salary for taking and certifying the affidavits. The-plaintiff stated to the commissioner that he had a claim for such services and a'sked him if he' had any objection thereto, and the commissioner replied “if he was entitled to it he ought to get it.” Stewart, Wallace’s successor during the balance of the time, testified that he never directed' the plaintiff to take the affidavits without compensation, and he knew that for rendering the services in question the plaintiff claimed compensation. This'was the situation down to the 6th of November, 1903, when the finance department of the city called the attention of the superintendent of buildings to the matter, and then the plaintiff was required to sign a stipulation that thereafter the affidavits would be taken without compensation. ■ All of the services for which a claim is here made were rendered prior to such stipulation.

For the services rendered by the plaintiff as commissioner of deeds the law implied an obligation to pay, unless the services were rendered gratuitously or as a part of the. plaintiff’s, regular duties, and without expectation of compensation therefor. If they were rendered gratuitously, or without expectation of compensation, the burden was upon defendant to prove it — that was a matter of defense. Plaintiff made out his cause of action when he showed that the services were rendered outside of the time when he was required to render services tinder his official position and that he had not been paid.

. It seems to me, therefore, that the court erred in not directing a verdict for the plaintiff. There was no dispute of fact. Plaintiff’s office hours were from nine o’clock in the morning until four o’clock in the afternoon, and all of the services .for which a claim is here made were rendered outside of office hours. There is no evidence tending to show that the services were rendered gratuitously or that the plaintiff did not expect to be paid therefor; on the contrary, the evidence is all the other way.

I also think that the court erred in charging the jury that the burden was upon the plaintiff to show that the services were not a part of his duty, and that he did not expect to be paid. The burden was upon the city to show such facts.

The verdict of the jury, therefore, is clearly against the weight of evidence, and for that reason the judgment and order are reversed and a new trial ordered, with costs to appellant to abide event.

Clarke, Scott, Miller and Dowling, JJ., concurred.

Judgment and order reversed and new trial ordered, costs to appellant to abide event.  