23 N.Y.S. 484
N.Y. Sup. Ct.
1893
FOLLETT, J.

A public officer cannot, without his assent, and in the absence of statutory authority, be deprived of the salary attаched to his office by being suspended, or prevented by his official superiors from temporarily discharging the duties of his office. So long as he remains a public officer, his right to the salary attached to the office exists. Nothing short of removal from, or abandonment of, his office bars this right. Gregory v. Mayor, etc., 113 N. Y. 416, 21 N. E. Rep. 119. The view we take of this cаse renders it unnecessary to determine whether the power to remove an officer includes ‍​‌​​‌‌‌‌​‌‌​‌​​‌​​​‌‌​‌‌‌​‌​​‌‌​​​​​‌​​‌‌‌‌‌​‌‌​‍the powеr of suspending him. For a discussion of this question see Gregory v. Mayor, etc., supra, and Emmitt v. Mayor, etc., 128 N. Y. 117, 28 N. E. Rep. 19, and the cаses cited in Throop, Pub. Off. §§ 401-406, inclusive. The right of the plaintiff to recover depends upon whether his intestate was a рublic officer of the city, or a mere employe of the department of public works. In this state, public offices can be created only by the lawmaking power,—the legislature, or by some public body or board to which thе power to make local laws or regulations has been delegated, pursuant to the constitution. No such оffice as "inspector of regulating and grading the streets in the city of New York” has been created by the statutes of this state, nor by any law or ordinance of any public board or body authorized to legislate for the city in respеct to its local affairs. Such an office is not mentioned in the consolidation act, (chapter 410, Laws 1882,) nor do we find any authority therein for the creation of such an office by any board or body existing by virtue of that act. Moreover, the evidence does not show that any body, board, or officer has attempted to establish such an оffice. Section 54 of the consolidation act provides:

“Every person elected or appointed to any office under the city government shall, within five days after notice of such election or appointment, take and subscribe, before the mayor, ‍​‌​​‌‌‌‌​‌‌​‌​​‌​​​‌‌​‌‌‌​‌​​‌‌​​​​​‌​​‌‌‌‌‌​‌‌​‍or any judge of a court of record, an oath or affirmation faithfully to perform the duties of his office, which oath or affirmation shall be filed in the office of the mayor.”

The burden of shоwing that the decedent held a public office was on the plaintiff, and there is no evidence that the intestatе took an official oath. A person designated and employed as foreman of a street-cleaning gang could claim, with as much propriety as the decedent, to be a public officer. We have not failed tо note the cases in which excise inspectors, (Gregory v. Mayor, etc., 113 N. Y. 416, 21 N. E. Rep. 119,) inspectors of ‍​‌​​‌‌‌‌​‌‌​‌​​‌​​​‌‌​‌‌‌​‌​​‌‌​​​​​‌​​‌‌‌‌‌​‌‌​‍masonry, (Emmitt v. Mayоr, etc., 128 N. Y. 117, 28 N. E. Rep. 19,) court attendants, (Rowland v. Mayor, 83 N. Y. 372,) and various other persons occupying positions in the courts, or in the departments of the state оr city governments, have been held to be public officers; but in all those *486cases the position occupied was created and existed by force of some statute or local ordinance having the force of а statute. The plaintiff’s intestate was not a public officer, but a mere employe of the department of public works, serving for daily wages, at the rate of three dollars for each day’s service. When the officer who employed him, and had the power to continue or to cease to employ him, refused to permit him longer tо render service, his right to wages was terminated. ‍​‌​​‌‌‌‌​‌‌​‌​​‌​​​‌‌​‌‌‌​‌​​‌‌​​​​​‌​​‌‌‌‌‌​‌‌​‍It makes no difference in what language the refusal is expressed. Whеn his services were dispensed with, his right to pay ceased. We are unable to see any good reason why a person whose services are no longer desired is “suspended,” instead of being discharged; and why the custom prevails, 'unless it1 is to “keep the word of promise to our ear, and break it to onr hope,” is difficult to understand. This practice has caused a multitude of actions against the city.

Chapter 119, Laws 1888, provides:

“No person holding a position by appointment in any city or county of this state, receiving a salary from such city or county, (unless he has been appointed for a definite term,) who is an honorably discharged soldier, sailor, or marine, having served as such in the Union army or navy during the wax of thе Rebellion, shall be removed from such position, except for cause shown, after a hearing had.”

The intestate held no “position by appointment,” and he was compensated for his labor by daily wages, but not by “receiving a salary,” and he is not within the statute. “Salary” differs from “wages,” and denotes a higher degree of employment. The term “wаges” indicates inconsiderable pay, without excluding “salary,” which is suggestive of a larger compensation for mоre important service. The contention that a person employed by the city, by the day, ‍​‌​​‌‌‌‌​‌‌​‌​​‌​​​‌‌​‌‌‌​‌​​‌‌​​​​​‌​​‌‌‌‌‌​‌‌​‍who has served in the аrmy, cannot be discharged, or his services dispensed with, “except for cause shown, after a hearing had,” derivеs no support from the language or intent of the statute quoted. But, admitting that the terms of the employment of the intestаte brought him within the act, he was not entitled to pay from the city while unemployed, though wrongfully removed or suspended by the commissioner of public works. Higgins v. Mayor, etc., 131 N. Y. 128, 30 N. E. Rep. 44. When this case was before this court on the former apрeal the question whether the then plaintiff was a public officer, or a mere employe of the city, was nоt presented to, nor considered by, the court. However, that decision, in so far as it conflicts with this judgment, is overruled. The judgment should be reversed, and, as under no circumstances can the plaintiff recover, the complaint should be dismissed, with costs. All concur.