Fisher v. . City of Mechanicville , 225 N.Y. 210 ( 1919 )

On March 16, 1915, the plaintiff, Fisher, was duly appointed village attorney by the board of trustees of the village of Mechanicville.

On June 29, 1915, the defendant, the city of Mechanicville, was incorporated with the same boundaries and inhabitants as the village of Mechanicville which it thus supplanted. (L. 1915, ch. 170.)

On the incorporation of the city, the plaintiff was discharged as village attorney on the theory that he held a public office in the village which terminated on the organization of the city.

The act incorporating the village of Mechanicville (L. 1891, ch. 106, as amended) provided with regard to a village attorney:

"It shall be the duty of the board and it shall have the power and authority * * *

"6. To appoint annually an attorney and pay such attorney a reasonable annual salary."

At the same time that the plaintiff was appointed his salary was fixed at the sum of $750 a year.

The act incorporating the village contains a list of village officers and the village attorney is not named therein. No provision is made in the act requiring the village attorney to take an oath of office. Neither is there any provision specifying the duties which the village attorney shall perform, and the fact is found that he does not perform any governmental duties.

I think, therefore, that the plaintiff as village attorney was not a public officer but rather that he was an employee of the village.

Upon any reasonable interpretation of the act incorporating the village, it must be said that it authorized the appointment of a village attorney for a term of one year.

The court found that the village trustees and the plaintiff made a contract whereby the plaintiff agreed to render legal services to the corporation for the period of one year for the sum of $750; that the plaintiff stood ready and willing to perform his contract; and that no fault was found with his services. These facts are sufficient to distinguish the case from those on which the defendant relies.

In Richmond County Gas-Light Co. v. Town of Middletown (59 N.Y. 228), cited by the defendant, the statute authorized the board of town auditors to enter into a contract with the plaintiff for lighting the streets of the town with gas. The board entered into a contract for five years. In the following year, 1866, the act authorizing the contract was repealed. This court held that the board of town auditors had no authority to make the contract for five years and when their power to contract was taken away by the repealing statute, the contract came to an end. But here the village trustees in appointing an attorney for one year did not exceed their authority.

Higgins v. Mayor, etc., of N.Y. (131 N.Y. 128) andQuintard v. City of New York (51 App. Div. 233) are cases which hold that where an individual has a right to employment or a preference in employment by a municipality, but is not actually employed, he cannot recover compensation though perhaps he may have a cause of action for damages against the officer who keeps him out of employment. But those cases do not control where the claimant has been actually employed under a contract to run for a definite period.

It is apparent furthermore that the legislature did not intend on the organization of the city of Mechanicville to abrogate the contracts made by the former village. It is expressly provided in the act organizing the city that all debts of the former village shall be the debts of the city and that the city shall succeed to all rights as well as the obligations and liabilities of the village in respect thereto. (L. 1915, ch. 170, § 7.)

From all that has been said it follows that the plaintiff is entitled to recover his compensation from the defendant.

I recommend, therefore, that the judgment appealed from be reversed and that the judgment of the County Court be affirmed, with costs in this court and in the Appellate Division.

HISCOCK, Ch. J., CHASE, COLLIN, HOGAN, McLAUGHLIN and CRANE, JJ., concur.

Judgment accordingly.