66 N.Y.S. 194 | N.Y. Sup. Ct. | 1900
The commissioners of the almshouse of the city of Kingston constitute a department of the city government and may sue and be sued by that title as if a corporation. There are nine commissioners of the almshouse, and on each first day of May the term of office of three of such commissioners expires. Such department may appoint such competent practicing physicians as may be necessary to render surgical and medical services to the city poor. Laws of 1896, chap. 747, tit. 7, § 77, sub. 7.
Dr: Connelly,, the plaintiff, continued in the discharge of the duties of physician for the western department. At the next meeting of the board of alms' commissioners the minutes of the meeting of November 7, 1898, were approved. On the 17th day of November, 1898, a unique instrument was signed by the president and secretary of the board of alms commissioners, and by the plaintiff. The plaintiff claims that by such instrument he was employed as the physician to the poor for the western department of the city from January 1, 1899, to January 1, 1901. For the purpose of this decision I will assume that the plaintiff is right in such contention.
About the 1st day of February, 1899, the salary of the physician for the western department was increased from $300 to $400 per year. No physician had ever been previously appointed for a term of two years. On the 1st day of May, 1899, the term of office of three of the alms commissioners expired, and three other
At the time such resolution was passed, the plaintiff, Dr. W. H. Connelly, was present, and said he would like to be heard, and permission being granted, he said that he was not a city officer, but that he was under a contract for two years, which he had signed. Dr. Daniel Connelly then entered upon the discharge of the duties of physician for the.western department, and has continued in the discharge of such duties since that time. The plaintiff has been in readiness to perform the duties of physician for the western department continuously since the 1st day of May, 1899, and brings this action to recover his salary from the 1st day of May, 1899, to the 1st day of January, 1991.
The defendant insists that the plaintiff cannot maintain this, action, and urges among other reasons that the duration of the office, or employment, is not provided by Constitution or declared by law, and that notwithstanding the contract between the plaintiff and defendant, the plaintiff only held his position during the pleasure of the board appointing him.
It is provided by section 3 of article X of the Constitution as follows: “ When the duration of any office is not provided by this Constitution, it may be declared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment.”
The courts hold that independently of legislative enactment the same rule applies to the tenure of persons who are in the public service as employees merely, and not as public officers. Abrams v. Horton, 18 App. Div. 298, and cases cited.
It is not claimed that the duration of the position of physician under the charter of the city of Kingston is provided either by Constitution.or declared by law. Treating the position as an office or an employment under contract merely, it would seem to be one that could be terminated by the defendant at pleasure. The case of Bell v. City of New York, 46 App. Div. 195, does not in terms
The question of the right to terminate such contract before it had been actually executed was not considered nor determined in that action. One who deals with the officers or agents of a corporation is bound to know their powers and the extent of their authority, and the plaintiff in this action in contracting with the defendant did so with knowledge of the limitation of their powers in making the contract. The good of the public service would seem to demand that apart from legislative provision, incoming boards should not be bound, against their will, by contracts made by outgoing boards extending'far into or through the term of the new board. It is not necessary for me to hold in this case that the plaintiff could have been dismissed at any time by the board who employed him prior to its reorganization. The case of Abrams-v. Horton is at least authority for holding that the contract is not binding upon a succeeding board.
I hold the contract with plaintiff not binding on the present board. I do this in obedience to what I believe to be the holding of the appellate court, and also in accordance with my own judgment as to what the decision should be in this case. The complaint of the plaintiff is dismissed, with costs.
Complaint dismissed, with costs.