82 A.D. 306 | N.Y. App. Div. | 1903
The plaintiff now is and prior to January 1, 1898, was one of the medical officers of the lire department of the city of New York. Prior to that time he received for services rendered by him as such officer a salary of $2,000 per year, and the same amount has since been paid to him. He claims that since that date he has been entitled to receive $3,000 per year instead of $2,000, and brings this action to recover the difference between the two sums. After trial at the Trial Term his complaint was dismissed and he has appealed.
He asks for a reversal of the judgment principally upon the ground that the uncontradicted evidence adduced at the trial established that when the Greater New York charter (Laws of 1897, chap. 378) took effect (which was January 1, 1898), he was a member of the uniformed forcé of the fire department and was then, and by virtue of section 740 of the charter since has been, entitled to receive a salary of $3,000 per year. This section of the charter provides, among other things, that “ the pay or compensation of the officers of the fire department and each of them mentioned in the first paragraph of this section, and also the pay or compensation of district engineers and officers ranking as such and of any other officers who, when this act takes effect, belong to the uniformed force of either of the fire departments hereby consolidated into one department, shall be and remain fixed at the amount which they and each of them were severally receiving or entitled to receive from the respective municipal corporations in whose employ they were prior to the taking effect of this act.” If it be true, as contended, that when the Greater New York charter took effect
First. We do not think the plaintiff, when the Greater New York charter took effect, was a member of the uniformed force of the fire department. It will be observed upon referring to section 438 of the Consolidation Act (Laws of 1882, chap. 410), that provision is made to the effect that “ every member of the uniformed force shall have issued to him by the board a proper warrant of appointment signed by the president of the said board and secretary or assistant secretary, which warrant shall contain the date of his appointment and his rank; ” and the following section (439) provides that “ each member of the uniformed force shall take an oath of office and subscribe the same before an officer of the department empowered to administer an oath.” There is nothing in the record before us to show that the plaintiff ever received the warrant provided for in section 438, or that he ever took the oath of office prescribed in section 439, nor do we understand that the plaintiff claims he was ever appointed in the manner there provided, or that he took the oath required; and if he did not receive the one and take the other, then there is no basis for his claim, because it is the certificate of appointment, coupled with the oath of office, which constitutes one a member of the uniformed force. In this respect his position is quite similar to one elected to a public office. A sufficient number of votes cast for him entitles him to receive from the ■ proper authorities .a certificate of election, and. this entitles him to qualify by taking the oath of office, and the omission of the latter forfeits' his right thereto. This view, is also strengthened by other provisions of the Consolidation Act. Thus, section 442 thereof and chapter 269 of the Laws of 1895 (amdg. Laws of 1884, chap. 234) provide for the salaries of those appointed to the force, and section 442 specifies the persons, chiefs of battalions, foremen, assistant foremen, engineers of steamers, assistant engineers of steamers and regular firemen, but nowhere is there any mention made of the salary of
/Second. But if the plaintiff was, in fact, a member of the uniformed force of the fire department on the 1st of January, 1898, he was not entitled to recover because he was not then receiving, nor was he entitled to receive, a salary of more than $2,000 per year from the city in whose employ he was prior to and at the time the consolidation took place. The section of the charter referred to (740) provides that “ the pay or compensation of the officers of the fire department and each of them mentioned in the first paragraph of this section * * * and of any other officers who when this act takes effect * * * shall be and remain fixed at the amount which they and each of them were severally receiving or entitled to receive from the respective municipal corporations in whose employ they were prior to the taking effect of this act.” Until the 1st of January, 1898, the plaintiff, it is conceded, was only receiving and entitled to receive $2,000 per year; but it is claimed that inasmuch as the board of commissioners of the fire department prior to that time included in their estimate of the expenses for that year to the board of estimate and apportionment an item of $9,000 for three medical officers — one of whom was the plaintiff — coupled with a resolution to the effect that “ the foregoing estimate amounting to two million six hundred and thirty-three thousand, four hundred and sixty-nine dollars ($2,633,469), is adopted as the sum of money which will be required for the expense necessary to the administration of the Fire Department of the City of New York for the year 1898,” which estimate was adopted by the board of estimate and apportionment, that this, in and of itself, amounted to an increase of the plaintiff’s salary from $2,000 to $3,000 after the 1st of
The judgment appealed from, therefore, must be affirmed, with ■costs.
Van Brunt, P. J., O’Brién and Laughlin, JJ., concurred; Patterson, J., concurred in result.
Judgment affirmed, with costs.