McKenna v. City of New York , 54 N.Y.S. 634 ( 1898 )

CULLEN, J.

The plaintiff sues for his salary as assistant clerk in the court of the justice of the peace of the First district of the city of Brooklyn, for the months of January and February, 1898. By section 14, tit. 21, of the charter of the city of Brooklyn (chapter 583, Laws 1888), a justice of the peace was empowered to appoint a clerk of his court, and such other clerks or assistants as the common council might authorize, all to serve during the pleasure of the justice. Under authority of the common council of that city, the plaintiff was, on January 1, 1896, appointed by Jacob Neu, a justice of the .peace, assistant clerk of his court, at a salary of $1,000 a year, and remained as such until the consolidation of the city with the city of New York. He contends that, by the provisions of the Greater New York charter, he has been continued in office, and is entitled to his salary. The defendant answered, admitting the allegations of the complaint, and setting up as a separate defense that the plaintiff was retained in office by the justice in violation of section 1542 of the charter, which provides that it shall be the duty of all heads of departments of the city, and officers charged with the duty of expending or incurring obligations, to regulate their expenditures so that the ■same shall not in any one year exceed the appropriation for that purpose made by the board of estimate and apportionment.

Without question, the plaintiff, under the terms of section 1384, was continued in office until the end of January. Whether he was continued beyond that time depends on the construction of section 1373. By this section it is provided that the justice elected or appointed for each district shall appoint a clerk and an assistant clerk, who shall receive, in the boroughs of Manhattan, Brooklyn, and the Bronx, an annual salary of $3,000. Then follows:

“The clerks, assistant clerks, stenographers, interpreters, and attendants of the district courts in the city of New York, and of the justices’ courts of First, Second and Third districts of the city of Brooklyn, who shall be in office on the first day of January, 1898, shall continue until the expiration of their respective terms, in the like capacities as officers of the said municipal court”

The section then authorizes a justice to appoint attendants to the •court not exceeding three, a stenographer, and in each district of the 'borough of Manhattan an interpreter. The salary and terms of these latter officers are prescribed, and the justice is authorized to remove any of them after notice and hearing. It is contended for the defendant that, as the plaintiff held his office during the pleasure of the .justice, he had no official term, and that his case therefore does not fall within the provisions of the section. The case of People v. Tierney, 31 App. Div. 309, 52 N. Y. Supp. 871, is cited in support of this claim. It was there said, in reference to this section, by Mr. Justice Chase, in an opinion adopted by the appellate division:

“This provision does not include the relator. The word ‘term,’ when used with reference to the tenure of office, ordinarily refers to a fixed, definite time, and does not apply to appointive offices held at the pleasure of the appointing power.”

This declaration was unnecessary to the decision of the case, and we are not prepared to express our opinion upon the question; nor is it necessary to decide it in the present case. If the plaintiff was entitled by law to hold his office and receive its compensation, we do not believe that any action by the board of estimate and apportionment could affect his right. But, in our view, it was not the intention of the section cited to continue in office all officers of the justices’ courts in the particular districts named. It will be observed that the section provides a permanent plan for the administration of the municipal court. The exact number of clerks to be provided for a court is prescribed,—a clerk and an assistant clerk,—as are also their salaries. Then is found the direction for the continuance in office of certain old officers, and then provision for the appointment of a definite number of attendants, stenographers, and, in certain cases, interpreters. While the direction for the continuance in office in certain cases is interjected in the body of the section, instead of being found at its end, still, we think, it is to be construed in connection with the provisions made for appointments to such courts. When it is declared that “the clerks, assistant clerks,” etc., shall be continued in office, there is meant the clerks, assistant clerks, etc., authorized by the section, to wit, one clerk, one assistant clerk, and no more than three court attendants. The legislature evidently determined that this official force was sufficient for the administration of any of the courts. No greater force of clerks or attendants would be requisite for the present than for the future. All these officers in the case of justices’ courts of the city of Brooklyn held their offices only during the pleasure of the appointing power. Being liable thus to have their official terms terminated at any time, they had no particular equity to be continued in office after the legislature had concluded that their offices were unnecessary. At the time of the consolidation, there appear to have been in Justice Neu’s court, besides-the clerk, four assistant clerks, with differing salaries. In our view of the construction of the statute, only one assistant was to be continued in office. The justice could designate that assistant; but the offices of the others than the one so designated were abolished on the 31st of January, 1898.

The judgment appealed from should be modified by reducing the recovery to the sum of $83.33, and, as modified, affirmed, without costs of this appeal -to either party. All concur, except GOODRICH, P. J., dissenting.