128 N.Y. 117 | NY | 1891
I can perceive no distinction in principle between the main legal question involved in this appeal and that which was passed upon in the case of Gregory v. Mayor, etc. (
In Gregory v. Mayor, etc. (supra) the plaintiff was an inspector of excise and he sued to recover payment of his salary for the time he was suspended by a resolution of the commissioners of excise. The argument was that he was a mere employee; having no fixed term of employment and whom the commissioners in suspending, in fact, discharged. Notice of suspension, it was argued, was a discharge from duty and pay, until in their pleasure the board should re-employ him upon duty. The argument was unsuccessful and we held that the power to suspend could not be inferred from the power to remove; nor be deemed inherent; and that it could not be regarded as a lesser power comprised within the greater. It was considered that nothing in the circumstances of the case showed an inherent necessity for the inference of the existence of the power to suspend, from the grant of the power to remove. I admit the force of the suggestion of the learned counsel for the city that there might be occasions when the work would not require the active performance of the duties of such employes; but that would be a reason for regulating the method of their compensation by some agreement. The compensation was left wholly to be fixed by the commissioners and the rate and condition of payment could perfectly well *122
have been the subject of agreement between them and their appointee. In my opinion, therefore, as the office of inspector was one which the act empowered the commissioners to fill by appointment, the incumbent derived from his office the right to receive the emoluments belonging to it, until discharged; and that temporary, or indefinite, suspension without pay was not within the powers of the commissioners to effect arbitrarily. But, as the compensation was to be fixed by the commissioners, it was perfectly competent for them to agree with the plaintiff with respect to it. It is only when the salary of an official is fixed by the law that it is beyond the power of those by whom he has been employed to agree upon some other figure, or to affect it in any way. People ex rel. Satterlee v. Police Board (
These views lead to an affirmance of the order and judgment below; and, as both parties have appealed, it should be affirmed without costs to either party as against the other.
All concur.
Judgment affirmed. *123