80 N.Y.S. 168 | N.Y. App. Div. | 1903
There is substantially no dispute between the parties as to the material facts involved in this appeal, the ques
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 express or implied. A public office exists, if at all, either by a constitutional 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. City of New York, 69 Hun, 293, 23 N. Y. Supp. 484. 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 not create an office or him an officeholder. He neither took an oath of office, nor did he assume the obligation to perform any particular specific duties. His employment constituted simply a contract between him and the city, under or by virtue of which he was entitled to receive, for services rendered upon the one hand, the compensation agreed to be paid upon the other. Higgins v. City of New York, 131 N. Y. 128, 30 N. E. 44; Cook v. City of New York, 9 Misc. Rep. 338, 30 N. Y. Supp. 404, affirmed in 150 N. Y. 578, 44 N.E. 1123; Quintard v. City of New York, 51 App. Div. 233, 64 N. Y.
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 suggestión 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.
The judgment appealed from, therefore, must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All. concur.