60 N.Y.S. 769 | N.Y. App. Div. | 1899
The learned judge at Special Term has found that the services rendered by the defendant Cartwright were necessary, and that the police department had authority to employ him therefor, but has continued this injunction on the ground that to attach a fixed salary would be to create an office which would be repugnant to the rule of law forbidding the creation of offices without express statutory authority. His conclusion is not, we think, a logical sequence from his premises. If defendant’s employment were permitted, and his services were of the value of more than $100, he is clearly entitled to payment by whatever name the police commissioners have chosen to call it. Moreover, no reason is apparent why the police commissioners should not be authorized to pay to the defendant a regular salary if thereby they can obtain services at a less expense to the city. While a salary may be one of the indicia of an office, it does not make one.
The more difficult question, however, is the one involved in the conclusion of the Special Term, that these services were so far necessary to the performance of the duties of the police commissioners as to invest them with implied authority to procure the same. In Dillon on Municipal Corporations (4th ed. § 89) it is said: “ It is a general and undisputed proposition of law that
We are cited to no authorities which question the power of the department to procure this service if reasonably necessary for its proper administration. The counsel for the appellants makes no claim that he is an officer of the city. He clearly is not. The case of Twist v. City of Rochester (55 N. Y. Supp. 850) holds only that the city of Rochester is liable for the safety of its streets though made unsafe by one in the employ of the police department. The case of Miller v. Warner (42 App. Div. 208) only holds that an employee of the police department is not a public officer of the city of Rochester. As far as this case is any authority in the case at bar, it would seem to be an authority for the appellants as recognizing the status of the plaintiff in that case as an employee of the city. In People ex rel. Rae v. York (32 App. Div. 57) it was held that the New York and Brooklyn bridge trustees had no authority to create the office of police surgeon as a public office. The case seems to recognize the position of Dr. Lewis as that .of an employee and in no way questions the right of his employment.
We cannot assent to the claim of the respondent’s counsel to the effect that the duty to police is a State duty and that the city has not been made liable for this expense by legal enactment. We have found the right of employment to be necessarily implied in the charter powers of the city. It appears that the general scheme of the statute is to make the expense of the police 'department a charge upon the city. It then becomes a logical inference that the city is charged with the expense of the execution of this implied power.
If the employment of the defendant Cartwright had been' an illegal one, this action would have been properly brought to restrain the payment of his salary. The payment of a salary to one not entitled to the same constitutes an illegal act and a waste of the corporate funds. As the employment, however, was authorized and the moneys claimed are due to him therefor, the plaintiff can have no right of action to enjoin their payment. The order should be reversed and the motion granted.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.