Smith v. City of New York (37 N.Y. 518, 1868)

Hunt, C. J.

(after stating the case.)—The substance of the plaintiff’s allegations is this: That Roof was appointed to the office of deputy collector of assessments in the city of New York, in July 1857, and continued to hold such office for about nine months; that he was ready and willing to perform its duties, but the defendants would not permit him; that another person did "‘perform them, and receive the fees; that, if he had performed these duties, he would have received fees to an amount set forth; and, upon these facts, he alleges that the defendants are indebted to l ira in the amount he would so have earned, and asks a judgment therefor.

An offi'ce, in this country, is not property, nor are the prospective fees of an office the property of the incumbent. (Conner v. City of New York, 5 N. Y. 285.) The incumbent cannot sell his office, nor purchase it, nor incumber it. It will not pass by an assignment of all his property, nor will such assignment affect his right to prospective fees. (Id., and cases cited, p. 290.) The legislature may diminish or abolish the fees at pleasure, or may render it a salaried office. The corporation of the city of New York may do the same, when it fixes the rate of compensation. It is only in the cases of a few of the state offices that the constitution prohibits such interference. (Id.) The same authority holds, and it is conceded by the appellants here, that the right to fees, or compensation, does not grow out of any contract between the government and the officer, but arises from the rendition of the services. (Id.; Dartmouth College v. Woodward, 4 Wheat. 627; People v. Warner, 7 Hill 8; s. c. 2 Denio 272.) An office is simply an appointment or authority on behalf of the government to perform certain duties, usually at and for a certain compensation. Both the office itself and the compensation, upon general principles of law, are entirely within the control of the government, to diminish, increase or abolish. So, it may at any moment be given up by the incumbent. There can be neither property or contract in such a subject; it is but a deputation for the benefit and advantage of the government. As the plaintiff had no contract with the city of New York, upon the principles stated, there could be no indebtedness for a breach of its terms, and the plaintiff’s action must fail.

The appellant cites several cases to show that an officer of a municipal corporation may maintain an action as on a contract, against the corporation, for the fees or salary attaching to his office. They are all cases, however, where the *officer, being in possession, had actually performed the duties of his office, and do not involve the principles of the case before us. Thus, in Derry v. City of New York (39 Barb. 169), and in Canniff v. The Same (4 E. D. Smith 430), there had been a change in the manner of appointing clerks of the police court, the appointment having been transferred to the board of police. The officer discharged all the duties, the compensation was fixed by law, and it was held, that a change in the manner of appointment did not affect the liability of the city to pay the salary. So in Lynch v. City of New York (25 Wend. 680), Judge Lynch had performed the duties of a judge of the court of sessions, at a salary fixed by statute; the .defendants refused to pay, and upon an application for a mandamus, the court denied it, holding that he had a perfect remedy by action. So, in Baker v. City of Utica (19 N. Y. 326), the services had all been performed, but were by law to be collected by assessment, and the court held, that the action could not be sustained, until the assessment was collected. If a corporation employ or appoint an officer to perform certain duties, at a compensation agreed, the services being performed, the corporation is liable to an action for the compensation. The action before us goes upon the ground of a contract to give the office to the plaintiff, or to permit him to perform its duties, and that not having given it to him, or not having allowed him to perform its duties and receive its fees, the defendant is liable for this breach of contract. There is no analogy or similarity in the cases.

It is suggested, that an amendment of the complaint should be permitted at this time, by which the same may be converted into an action fox money had and received by the defendants to the use of Roof. I have never known the exercise of such a power by this court, and am not aware of any authority for it. In no event could it be granted, except by a motion of which the defendants had notice, and in which the necessary terms could be imposed.

I have not discussed the rule of damages adopted by the referee, nor whether the plaintiff is entitled to fees for services performed by Libby, nor what defence arises from the injunction, nor what remedy the plaintiff had, or might have had, against *- the parties obtaining the same. The discussion of these points is unnecessary, if I am correct in the position, that the plaintiff has no right of recovery in this action.

Order affirmed, and judgment absolute.

Long v. City of New York, 81 N. Y. 428; Wood v. City of New York, 12 J. & Sp. 327. But see McVeany v. City of New York, 80 N. Y. 185.

Haswell v. City of New York, 81 N. Y. 255.