80 A.D. 12 | N.Y. App. Div. | 1903
There is substantially no dispute between the parties as to the material facts involved in this appeal, the question presented being one of law. The facts, so far as they are material, are as follows : The plaintiff is an honorably discharged veteran of the late Civil war. During the year 1901 he was employed by the city of New York as a day laborer in the department of parks at two dollars per
We are of the opinion that this judgment should be reversed. The plaintiff was not an officer of the city in any sense of the word. His right to receive wages was by virtue of a contract, either expresa or implied. A public office exists — if at all — either by a con. stitutional provision or else by the fiat of the Legislature, or by some body or board to which the Legislature has delegated the power to create an office. (Meyers v. Mayor, 69 Hun, 293.) It is not claimed that there is such an office as day laborer in the city of New York, created in this way, and, therefore, the plaintiff is not entitled to receive from the city the amount for which a recovery has been had upon the theory that it is the salary attached to or an incident of his office. If the plaintiff is entitled to recover at all, it must be by virtue of his employment alone, and this employment, manifestly, even though he was taken from the civil service list, did
The case relied upon as sustaining the judgment (O'Hara v. City of New York, supra) is clearly distinguishable from this one. There a veteran of the Civil war was appointed a cleaner in the department of public buildings, and subsequently detailed at a salary of fourteen dollars a week as a watchman in the county court
But it is said that we are not at liberty to examine the appeal on the merits, inasmuch as there is no proper exception to the findings of fact and conclusions of law. There would be force in the suggestion were it not for the fact that the conclusion of law is all wrong, and in this respect the case is clearly distinguishable from Drake v. New York Iron Mine (156 N. Y. 90). There some of the conclusions were good and some bad, and the court held that a general exception to all of the findings or conclusions of law did not raise any question, and manifestly it could not, inasmuch as some were good. The purpose of an exception is to point out the errors complained of and upon which the party will rely on the appeal. (Hunter v. Manhattan Ry. Co., 141 N. Y. 281.) Here there is only one conclusion of law, and that being bad, we think a general exception is sufficient. (Todd v. Nelson, 109 N. Y. 323.)
The judgment appealed from, therefore, must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide •event.