#### Ernest Harvier, Respondent, *v.*The New York & Harlem River Railroad Co. et al., Appellants.

(Supreme Court, Appellate Term,

February, 1899.)

Statutes — Rights of employees under chapter 613 of Laws of 1898, an amendatory act for the improvement of Park avenue, above One Hundred and Sixth street, New York city.

Notwithstanding the transfer by chapter 613 of the Laws of 1898 (passed April 29th) to the commissioner of highways of the city of New York of the powers and duties of the hoard for the improvement of Park avenue above One Hundred and Sixth street and under the structure of the New York and Harlem Railroad Company, created by chapter 339 of the Laws of 1892, former employees of such board who continued to work on the improvement until June 2, 1898, when they were discharged by the city commissioner of highways, are entitled, under section 4 of the act of 1898, to recover of said railroad and of its lessee, the New York Central and Hudson River Railroad ' Company, compensation for the period between the passage of the act of 1898 and the date of their discharge. MacLean, J., dissented.

Appeal from a judgment in favor of plaintiff entered, in the Third Municipal Court, borough of Manhattan, for the sum of $235.68 damages and costs after trial by the court.

Chas. G. Spaulding and Robt. A. Grutschbock, for appellants.

L. M. Berkeley, for respondent.

Freedman, P. J.

The plaintiff brings this action as the assignee of Arthur Schlemmer, Charles Curry and James Owens, who claim there was due- them from the defendants the sum of $208.50 for wages for the month of May, 1898, for work done by them in Park avenue, Hew York city.

In 1892, the legislature passed an act (chap. 339) by which it was provided that the defendants’ tracks in Park Avenue should be elevated and placed upon a viaduct, and provision was made in said act for a public board to be known as *“*the board for the improvement of Park avenue above One Hundred and Sixth street.”

*398Upon the trial the defendants offered no testimony, and at the close of the case on the part of the plaintiff moved to dismiss the complaint upon the grounds that the board had no authority under the law to appoint these men.

That the board went out of existence on April 29, 1898, and by virtue of the statute (chap. 613, Laws 1898), all the appointees of the board went out of office with it, and that the action was improperly brought against these defendants, and upon those grounds is based the argument on this appeal.

The powers and duties imposed upon the board for the improver ment of Park avenue above One Hundred and Sixth street, so far as it appears applicable to the case at bar, are set forth in section 13 of chapter 339 of the Laws of 1892, as follows: “ There shall be a board * * * which shall be called The Board for the Park avenue Improvement above One Hundred and Sixth street. It shall be the duty of said board to file a monthly statement under oath of the items of its expenditures with the comptroller of the city of Hew york. Regular accounts of all its transactions shall be kept by the board, which shall be open for the inspection of the officers of said railroad company and to the comptroller of the city of Hew York. * * * The board is hereby authorized and directed to take the entire charge and control of said improvement from One Hundred and Sixth street to the south line of the Harlem river * * * and to execute the same in conformity with all the provisions of this act, in a substantial and workmanlike manner. Such work shall be done, so far as possible, by contract. * * * All work to be done upon or under any street, between One Hundred and Sixth street and the south line of the Harlem river shall be done under the supervision of the department of public works, and the commissioner of public works shall appoint necessary inspectors and engineers for the supervision of such work.” The act also provided that the expense and cost of said improvement should be paid by the railroad company in the first instance, and they were to be reimbursed by the city of Hew York for one-half thereof up to a certain amount.

The several amendments made to the above act does not affect this case.

By chapter 613 of the Laws of 1898, passed April 29th, all the powers and duties imposed or conferred upon said board were transferred to and devolved upon the commissioner of highways of the city of Hew York, and it was provided in that act that nothing con-*399tamed therein should affect any contract theretofore made by or with said board, and that any contract and all rights thereunder might be enforced in the name of the city of Hew York by the .commissioner of highways in the same manner and to the same extent that any such contract or such rights thereunder might or could have been enforced by the said board.

Section 4 of that act provided that nothing contained in said act should relieve the Hew York & Harlem River Railroad Company or its lessee, the New York Central & Hudson River Railroad Company, or either of them, from any costs, charges or expenses imposed upon them by the act of 1892, chapter 339.

It is conceded by the appellants that Schlemmer was appointed an inspector of masonry July 15, 1895, at a salary of $100 per month, that Curry was appointed a watchman on June 29, 1897, at wages of $1.75 per day, and that Owens was appointed to the same position at the same wages on March 18, 1898, which appointments were duly made by resolutions passed by said Park avenue board.

It is also conceded that they continued to perform the work for which they were appointed up to June 2, 1898, when each received a notice from the commissioner of highways of the city of Hew York informing them that their positions had been vacant since April 29, 1898.

These defendants paid them up to April 29, 1898, and it was shown on the trial that no other notice had ever been given them; that defendants refused to pay them for their services since the date last mentioned, and that they had not been paid and that their claims had been duly sold and assigned to this plaintiff, who paid therefor the full amount of their respective claims.

The Board for the Improvement of Park avenue above One Hundred and Sixth street had authority under the act creating them and defining their duties and powers to appoint such men. *“*The power to do an act includes the power * * * to do it effectively.” Matthews v. Am. Cent. Ins. Co., 154 N. Y. 460.

It is not important whether the appointees were termed *“*inspectors or watchmen ” or by what name they were known on the payrolls. If they were employed by the board to, and did perform services upon the work over which the board had entire charge and control that is sufficient.

The structure upon which the work was done by Schlemmer, Curry and Owens was the property of these defendants (Laws of 1892, chap. 339, § 24; People ex rel. N. Y. *&*H. R. R. R. Co. v. *400Commissioners of Taxes, 101 N. Y. 322), and the defendants derived the benefit of such services.

The act of 1898, chapter 613, transferred to and imposed upon the commissioner of highways of the city of New York all the duties and liabilities theretofore imposed upon the board.

It is evident that section 3 of that act does not intend to include contracts of hiring, but makes a distinction between the contracts contemplated by section 13 of the act of 1892, and what might be deemed “ costs, charges and expenses ” under section 4 of the act of 1898 (chap. 613), and the wages of the assignors may reasonably be considered as a portion of the *expenses*contemplated in the section last referred to.

The commissioner of highways of the city of New York under the authority conferred and imposed upon him by the act of 1898 might have discharged Schlemmer, Curry and Owens at any time after April 29, 1898. He permitted them to continue their duties until June 2, 1898, without notice, and a notice given at that time could not deprive them of wages already earned from April 29, 1898, to June 2, 1898.

The judgment should, therefore, be affirmed, with costs.

Leventritt, J., concurs.

MacLean, J. (dissenting).

Inasmuch as “ the Board for the Improvement of Park avenue above One Hundred and Sixth street,” ceased to exist on the ' 29th of April, 1898, by virtue of chapter 613 of the Laws of that year, the employment of persons engaged by it terminated with the board’s existence, just as the death of the master discharges servants, even when the hiring be for a definite period or not, as here, only at will. The assignee of the plaintiff must be deemed to have known of the abolition-of their employer. If they wished any further work, they should have sought and obtained employment from the authority charged with carrying on the work of the late board. It is not to be assumed from the devolution of the work upon a new functionary that it was the intent of the legislature thereby to continue the employment of the laborer hired by the board abolished, but rather otherwise, since it omitted to manifest such intention by providing that the laborers be so continued.

Judgment affirmed, with costs.