Reynolds v. City of Mount Vernon

| N.Y. App. Div. | Jul 1, 1898

Hatch, J.:

The purpose of this action is to recover the value of certain medical services, claimed by the plaintiff to have been rendered at the instance and request of the defendant, in pursuance of a contract executed by it through its board of health. The board of health of the defendant which made the contract was created by the charter of the defendant (Chap. 182, Laws of 1892), section 220 of which provides that the board of health shall consist of the mayor, supervisor and the health officer of the city. Such board of health is given power to prescribe regulations for vaccination, and the prevention of persons infected with contagious diseases from entering the city, and further to provide for the removal to a'hospital or pesthouse of all persons suffering from, or having been exposed to, any contagious disease; to take charge of, inspect and regulate the rebuilding, construction and keeping clean all constructions or works affecting the public health, and generally possessing such powers as are conferred upon such boards. By section 222 of said act, such board is authorized to prescribe .the powers and duties of the health officer in all sanitary matters, so far as the same shall not come i'n conflict with such officer’s powers and duties as prescribed by general laws.

In March, 1894, the plaintiff as health officer reported a case of smallpox in the city, and thereupon the board of health adopted a resolution that “ the health officer be instructed to employ a special physician, compensation. not to exceed $20.00 per day, also a nurse and two special officers, all to be quarantined, and to take such other action as he may deem necessary to isolate the disease.” Acting under this resolution the plaintiff proceeded to isolate the person suffering from the said disease, and employed a physician as directed by the resolution. This physician not proving satisfactory, the health officer took charge of the case in person, and made thirty-five visits to the patient at the -place of isolation, for which lie charged five dollars a visit. Prior to this time, and on March thirteenth, he attended a case of confluent smallpox at No. 12 Stevens avenue, for which he charged twenty dollars. In July of the same year the plaintiff as health physician reported a case of smallpox, and also stated to the board that he would like to make what money there was in it; and'thereupon the board passed a resolution that “the health officer be authorized to employ two watchmen, a trained nurse at $5 a day, and attend to the case himself.” In this case he charged for sixteen visits at $10 a visit, amounting in all to $160. His total bill, for which a judgment has been directed, amounts to $355 and interest. At the time of the adoption of these resolutions the plaintiff was a member of the board, and so continued during the period of his attendance upon the cases. He did not vote upon the resolutions, but they were adopted by the other members of the board. At this time, however, he was paid a salary of $75 per month, which had heen prior thereto fixed by the hoard. The judgment proceeds upon the ground that the services rendered by the plaintiff were additional to the duties devolved upon him as health officer, and being of an extra hazardous character, entitled him to extra compensation at the rates charged.

The statute under which the hoard acted does not specifically define the duties of a health officer, hut the nature of his employment and the purpose of the creation of the office sufficiently designate the character of the duties which he is to perforin; and we think that such duties embraced necessarily the character of service which was rendered in this case. And while the board of health undoubtedly had power to authorize the employment of other physicians and create a legal charge therefor against the city, so long as the statute remained in force under which it acted, yet we do not think that the officer himself could exact extra compensation for the service which he rendered, Upon the basis that such service was extra hazardous. There was no employment by the board of health of the health officer in the first case; he took charge of that case upon his own motion. So far as the second resolution was concerned, by its very terms the duty of attending such case was devolved upon the health physician by the specific action of the hoard. They had the power under this statute to exact such service; and the plaintiff became bound to render it by virtue of his general employment, and could not exact extra compensation therefor. The case in this respect falls within the principle enunciated in Cowan v. The Mayor, etc., of New York (3 Hun, 632); People ex rel. Phœnix v. Supervisors of New Yorh (1 Hill, 362). The fact, if such it be, that the city has, prior to this time, paid to another health ' officer extra compensation for such service, does not have the effect of creating a valid claim against the city for the services rendered by the plaintiff. Such is the conclusion of the court in the case last cited. Nothing which is contained in MacDonald v. The Mayor (32 Hun, 89) conflicts with this view. In that case the service which was rendered by the physician was in no sense within the range of the duties imposed upon- him by his employment. On the contrary, the services rendered therein were for another officer in another department, and such services had no relation whatever to, nor were they connected with, the duties devolvéd upon him by the position which he held. The difference between the two cases is quite radical. In the present case the. duties of the plaintiff were •devolved upon him by his employment, and' had immediate and direct relation to the obligations which rested upon him growing out of the position which he held.

■This leads us to the conclusion that no liability rested upon the city to make compensation for the service.

•The judgment should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and new trial granted, costs to abide ■ the- event-.