
    Thomas Spencer, Plaintiff, v. The City of New York, Defendant.
    (Supreme Court, New York Trial Term,
    December, 1903.)
    New York city — When an employee of the department of public charities cannot recover compensation for taking, as a notary, affidavits in commitments of the insane.
    In view of the fact that section 674 of the charter of the city of New York forbids its commissioner of public charities from incurring any expense for any purpose beyond the amount appropriated therefor and from expending any money except as appropriated, a salaried employee of the department of charities, appointed a notary public at his own expense, can recover nothing of the city for fees on affidavits to commit insane persons taken before him-at the request of the commissioner by department and city officials, upon a statement of the commissioner to him that he would get paid sooner or later and that some arrangement would be made to pay him, where it appears that the city had made no appropriation to pay such fees, as in such case there is no evidence that the commissioner had authority to bind the city.
    Motion for a new trial.
    Morgan & Mitchell (Richard H. Mitchell, of counsel), ■for plaintiff.
    George L. Rives, Corporation Counsel (Chase Mellen, assistant), for defendant.
   Clarke, J.

Plaintiff has been an employee of the department of charities since 1896. His duties as inspector were to take any insanity papers that had been made out by the examiners in lunacy, have them signed by the doctors, have them signed by the commissioner, take them to the corporation counsel’s office, have them approved, take them to the court and procure the judge’s signature, then take them up every evening.to the Manhattan State Hospital on Ward’s Island. In 1896, he was appointed a notary public, paying the fee required himself, and has been reappointed ever since. By chapter 545 of the Laws of 1896 in relation to the insane, no person alleged to be insane can be committed except upon an order of a judge based upon a verified petition made by the person with whom such alleged person resides, or certain relatives, or an overseer of the poor — in this city the commissioner of charities — accompanied by the certificate of two examiners in lunacy. Certain affidavits are required upon such papers. It was such papers, made out to procure the commitment of insane people under the jurisdiction of the commissioner of charities, with which plaintiff had to do. He testified that in 1896 he had a conversation with the then commissioner, Mr. Faure, about taking these affidavits. “ I asked Commissioner Faure, what about my getting paid for this work? And he said I would get paid sooner or later; there would be some arrangement made to pay me.” Mr. Faure testified in answer to the question: “ Will you please state any conversation that you may have 'had with Mr. Spencer in reference to payment for the taking of these affidavits? ” That such payment would be subsequently arranged for. The plaintiff further testified that every time that his two years (referring to his commission as notary) would run out, he would ask the commissioner who was in office at the time, if he desired that he should continue the same work that he had been doing, and he said yes. That he spoke to Commissioner Keller, who was in office during the period covered by this suit, and had just about the same conversation as he.had had with the other commissioners. This suit is to recover the notarial fee of twelve cents for 8,336 affidavits taken between the 15th day of September,, 1900, and the 1st day of January, 1902, amounting to $1,080.62. During all this period he was in the receipt of a regular salary of forty dollars a month. The affidavits so taken were by the medical examiners, the commissioner, the persons who made the service on the insane person and the relatives. A large proportion were of persons not in the employ of the city; how large a proportion plaintiff could not state. Plaintiff relies upon Merzbach v. Mayor, 163 N. Y. 16. But in that case it was not denied that the district attorney had authority to incur such expenses, and that an appropriation was made each year for the payment thereof through the comptroller.” Again the court said: “As he actually rendered the services'at the. request of an officer authorized to bind "the defendant for the expense thereof, he was entitled to recover the legal fees unless the defendant established a waiver.” Assuming that the affidavits were taken at the request of the commissioner — though a large proportion thereof were not of public officials — and that they were necessary to complete the legal machinery by which the commissioner in the performance of his duties procured the commitment of the insane poor to a State insane hospital, and that the conversation testified to — “I would get paid sooner or later; there would be some arrangement made to pay me”—was had with Commissioner Eaure in 1896, and its effect was continued by relation down to the period in suit, did the city become bound to pay this claim ? A distinct defense is interposed, “ That no appropriation was made in the manner authorized by law, out of which plaintiff could be or was to be compensated for his services as a notary public apart from his regular salary, nor was any officer of the defendant at whose instance and request said affidavits, or any of them, were taken authorized to incur on behalf of the defendant any obligation to pay for said services apart from plaintiff’s regular salary as aforesaid.” Section 674 of the charter provides: “ The commissioner shall incur no expense for any purpose in excess of the amount appropriated therefor; nor shall he expend any money so appropriated for any purpose other than that for which it was appropriated.” There was no appropriation for the payment of these notarial fees specifically, nor was there in the budget any appropriation for a contingent fund. There is, then, no evidence in the case that the commissioner could incur any such obligation on the part of the city. Rourke v. City of New York, 77 App. Div. 72; Benjamin v. City of New York, id. 62; McCabe v. City of New York, id. 637; Knox v. City of New York, 78 id. 371. It is quite possible the commissioner hoped to be able to pay for these services either by having Spencer’s salary raised, or by getting a direct appropriation. But as neither was done, he was under the inhibition of the statute, and could not bind the city. Plaintiff being a city employee, on a salary, owed his service to the city, and his compensation for his services is not to be increased indirectly without provision of law, or in violation thereof. Both sides having moved for the direction of a verdict, the verdict is directed for the defendant. Motion for a new trial denied. Thirty days’ stay and thirty days to make a case.

Motion denied.  