Bogart v. New York & Long Island Railroad , 102 N.Y.S. 1093 ( 1907 )

Ingraham, J. (dissenting):

I dissent. When the plaintiff was appointed consulting engineer the resolution of the board of directors provided that it should he “ at such compensation as the board may hereafter determine upon,” and he accepted that appointment upon such terms. 1 think he impliedly agreed that the compensation for the services to be rendered under such appointment was to be determined by the board of directors, and that, he was not entitled to recover from the defendant compensation for his services based upon a quantum meruit. Assuming that the president had the power to direct him to perform services for the company, such direction was not an employment of the plaintiff, but simply regulated the work that he was to perform as an officer or employee of the company under the appointment which he had accepted. He accepted the appointment without the salary being fixed, agreeing that it should be subsequently fixed by the directors, and not the president. As an employee of the company he performed services for the company, but the services that he performed were under his appointment by the board of directors, and his agreement with the company was that he should be paid such compensation as the board should fix. As he has never requested the board to act, and as the board has never fixed the compensation, I do not think he was entitled to recover. The action of the board in directing that he be paid for the services that he performed prior to the services in question was an act of the board under the power that it had reserved to itself to fix the plaintiff’s compensation. It certainly was not an admission that he was entitled to recover the value of the services that he rendered in the future, without action by the board of directors. An entirely different question would be presented if the president of the company had employed the plaintiff to render services to the company, which services he-had rendered, and the company had accepted them, but where he was employed by the company at a salary to be fixed by the board it seems to - me that he-can only recover the amount of the salary or .compensation thus fixed, and is not entitled to recover upon a quantum meruit.

Judgment and order affirmed, with costs. Order filed.