Dempsey v. New York Central & Hudson River Railroad (146 N.Y. 290, 1895)

Bartlett, J.

This is an appeal from an interlocutory judgment of the General Term, fourth department, affirming an interlocutory judgment of the Special Term overruling a demurrer to the complaint.

The plaintiff seeks in this action to compel the defendant to issue to him for the year 1895 an annual pass upon its railroad in pursuance of a contract to that effect; also to recover damages suffered by reason of the breach of the contract.

The defendant demurred to the complaint as not stating facts sufficient to constitute a cause of action, its contention being that the plaintiff is a public officer and that it cannot lawfully perform such contract and issue the annual pass as it would be a violation of article 13, section 5 of the Constitution of the state of Eew York which went into effect January 1st, 1895, and prohibits a public officer from receiving for his own use or benefit any free pass from a corporation.

The plaintiff, in March, 1893, .entered into a contract with defendant wherein it was mutually agreed that the plaintiff should perforin services for ^ the defendant in preventing depredations upon its property by thieves and trespassers, and that the plaintiff in the performance of such duty should at all times be ready to respond to any demands made upon him by the defendant; that as a consideration for such services the defendant was to pay plaintiff a salary of seventy-five dollars a month and deliver to him an annual pass in the usual form for transportation over the railroad of the Eome, Watertown & Ogdensburg Eailroad Company and also over the railroad of the defendant to be used by plaintiff whether engaged in the business of the defendant or in his own private affairs.

In order to carry out this contract the plaintiff, in July, 1893, secured from the governor of the state an appointment to the office of railroad policeman under the Laws of 1890» chapter 565, section 58, known as the Eailroad Law.

The act requires the appointee to take and subscribe the constitutional oath of office and file it with his commission in the office of the secretary of state, and the latter certifies the fact to the county clerk of each county where the policeman is authorized to act. The act further provides that the compensation of such policeman shall be paid by the corporation for which he is appointed, and the appointment shall cease at the pleasure of the corporation.

The plaintiff at once duly qualified as such policeman and. entered upon the performance of the contract, and so continued until the first day of January, 1895, up to which time both parties performed the same. On the first day of January, 1895, the defendant refused, on demand, to issue its annual pass to plaintiff for the reasons already stated, and this action was commenced.

There are two questions presented by this appeal, viz.: Is the plaintiff a public officer, and does the constitutional provision referred to prevent the defendant from issuing to him its annual pass under the contract ?

The plaintiff was appointed by the governor of the state of Eew York; was required to take the constitutional oath, and was by virtue of his appointment authorized to perform the duties of a peace officer or policeman in protecting the property of the defendant and of the general public in the custody of the defendant.

We think the manner of his appointment and the character of his duties constitute the plaintiff a public officer.

In Henly v. The Mayor of Lyme (5 Bing. 91) Best, Ch. J., answering the question