People ex rel. Bacon v. Board of Supervisors , 45 N.Y. Sup. Ct. 373 ( 1885 )

BarNArd, P. J.:

No doubt can be entertained, I think, but that the general law (chap. 482 of Laws of 1875) gives the board of supervisors of Kings county power to fix the number, grades and compensation of the employes in the office of the district attorney.

Chapter 544 of the Laws of 1857, limiting the power of appointment in the district attorney to one clerk at a compensation of not exceeding $1,000 per annum, and chapter 111, Laws of 1866, were-both merged in the general law.

The board liad power to fix the compensation of the relator, and in August, 1877, did fix the salary for the office of chief clerk, which relator filled at $3,000 per annum. This wás done by resolution in the usual way, and if nothing has been since done to change it, the compensation is to be made at the rate of $3,000 per year. It seems clear that a change was made by force of the subsequent events in respect thereto. No formal fixing of number of clerks or compensation can be necessary. JBoth a corporation and those who deal with it can be bound by acts done.

In the fall of 1877 there was elected a district attorney for Kings county. Immediately after his election there was by resolution of the board of supervisors a reduction made in the sum which was to be raised for the office for the year beginning January 1, 1878. The case does not show the fact that this reduction was made known to the district attorney, but it does show that the district attorney appointed the relator as chief clerk, at a salary of $1,500 a year. That he so told the relator, and he accepted the appointment at that rate. That the force in the office was all made to conform to the reduction by the supervisors, and that the list of clerks and assistants were returned with the salary to each, as made by the district attorney, and using up just the sum limited by the board. The relator. was on the list at $1,500 per annum. The reduced amount was raised by tax and no more. The relator was paid for his salary after this rate for the three following years without an objection. If this was a transaction between two individuals the proof would be decisive of a new contract. The salary was one which the supervisors could fix. They fixed an entire amount for the office. The chief officer who made the appointment returned the plaintiff as one employed at $1,500 a year, and they raised and paid his salary after that reduced rate. It is not the case where an official charged with the duty of appointment only undertakes to charge the corporation. The supervisors can fix the rate, and the objection is only one of form and not of mistake. It was a new contract as between these parties, and this relator has been paid in full for his services.

Judgment against him should therefore be affirmed, with costs.

Dtkman and Pbatt, JJ., concurred.

Judgment affirmed, with costs.