
    Gennaro de Angelis, Plaintiff, v. The City of New Rochelle, Defendant.
    Second Department,
    June 4, 1909.
    Municipal corporation — Salary of draughtsman — delegated power,
    By chapter 661 of the Laws of 1907, authorizing the appointment of a board of public works for the city of Hew Rochelle, and giving the board power to appoint various. employees, among them “one draughtsman,” and further providing that the “common council shall prescribe salaries and wages under this act,” the Legislature did not delegate to the common council a continuing power'to fix salaries, but the power when once exercised was exhausted.
    The common council having by resolution fixed the salary of a draughtsman appointed pursuant to said actof .1907 at §100 per month, cannot, by subsequent resolution, increase it to §1,500 a year.
    Woodward and Gaynor, JJ., dissented.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      Samuel F. Swinburne, for the jdaintiff.
    
      Michael J. Tierney, for the defendant.
   Burr, J.:

By chapter 661 of the Laws of 1907 the' mayor of the city of Hew Rochelle was authorized, subject to the affirmative vote of at least one-half of the number of aldermen in office, to appoint three citizens, wlio' should constitute the board of public works of said city. Thereafter such board was duly appointed and qualified. The board was given power to appoint various employees enumerated in said act, and among them “ one draiightsman.” It was further provided that the “ common council shall prescribe salaries and wages under, this act.” -On the 5th day of October, 1907, the .plaintiff was appointed to. the position of draughtsman. Prior thereto, and tin the third day o.f September, the common council .adopted a resolution “ That the salaries of the following employees of the Board of Public Works be fixed for the year of 1907, as-follows: * * * Draughtsman $100 per month.” On October fifteenth, at a meeting of the common council, the clerk read a communication from the plaintiff requesting an increase of salary, and a resolution-was thereafter adopted in the following form: “ Resolved that the-salary of- the draughtsman o.f the Board of Public Works be fixed at $1,500.00 per annum.” These are the only resolutions adopted by' the common council on the subject. From November 1, 1907, to and including August, 1908, plaintiff has been paid, at the rate of $100 .per month. Pie claims that' he was entitled to receive $125 per month, and accepted the smaller sum without prejudice to his claim. TJnder the provisions of the Code this controversy is submitted, and the question is as to the validity of such claim. . ■

The power to fix salaries, delegated by the Legislature to the common council, was not a continuing power, but when once exercised was exhausted. (Cox v. Mayor, etc., of N. Y., 103 N. Y. 519; People ex rel. Williams v. Haines, 49 id. 587, 593; Smith v. Mayor, etc., of N. Y., 1 Hun, 56.) A.s wassa.idin the 6b® case: “It was not a power which, to promote' the public good or to carry out a definite public policy, was required to be continuously possessed or repeatedly exercised. The language of the statute seems to have been carefully selected, and if it had been intended to lodge a power in the common council liable from continuous importunities' of office-holders to be abused, we might expect to find the intent expressed in more appropriate and unmistakable phraseology. It is a delegated power which should not be- extended by construction,- implication or doubtful inference.” For an example of air act conferring continuous power, see Laws of 1892, chapter 446. The plaintiff conteiids that the resolution of. September third- only assumed to fix the salary for the year 1907, and that at least after January 1, 1908, lie was entitled to the increased pay. If the argument proves anything, it proves too ranch, for there has been no fixing of the salary specifically for the year 1908. The resolution of October fifteenth could not be given that effect, for the official year of the city of New Rochelle begins on the first day of January (Laws of 1899, chap. 128, § 5), and at the first meeting of each official year the common council is reorganized (Id. § 50). The common council of 1907 could not act for its successor; but we think that the words for the year of 1907 ” in the resolution of September third may be regarded as surplusage. The common council had no power to fix the salary for any particular year but once for all.

There must he judgment for .the defendant, but, under the stipulation, without costs.

Jenks and Miller, JJ., concurred; Woodward and G-aynor, JJ., dissented.

Judgment for defendant on submission of controversy, without costs.  