#### Joseph F. Wilson, Plaintiff, *v.*The City of New York, Defendant.

(Supreme Court, New York Trial Term,

June, 1900.)

Office — Prospective salary of New York city department clerk may be reduced — Accord and satisfaction.

As the Consolidation Act (L. 1882, ch. 410, § 48) provides that the salary of clerks, etc., in the city of New York “ shall be such as the respective heads of the departments shall designate and approve ”, the prospective salary of a clerk in the health department may be decreased, and if he accepts and receipts for the lower salary under a claim upon the part of the city that the payment is in full, he cannot subsequently recover of the city the amount of the reduction.

Action to recover balance of salary claimed to be due.

John O. Robinson, for plaintiff.

John Whalen, Corporation Counsel, and W. B. Crowell, for defendant.

*694McAdam, J.

The plaintiff was appointed as a clerk by the health department July 13, 1887, with a salary at the rate of $1,200 per annum. On December 28, 1892, the salary was by resolution of the department fixed at the rate of $1,500. On January 23, 1895, the salary was by a like resolution fixed at $1,300. The plaintiff accepted and receipted for salary at that rate under said resolution up to July 14, 1896, when he resigned. He now sues to recover $300 (being the difference between $1,300 and $3,500 per year) upon the ground that the resolution of January 23, 3 895, was unauthorized. The plaintiff is in error as to this. The prospective salary of a public office may be increased or decreased by the appointing power, except in cases wherein the statute or the State Constitution expressly or by necessary implication withholds the authority. Dillon Mun. Corp. (2d ed.), § 70. In Conner v. Mayor, 5 N. Y. 296, the court said: “ The prospective salary or other emoluments of a public office, are not the property of the officer, nor the property of the state. They are not property at all. - They are like daily wages unearned, and which may never be earned. The incumbent may die, or resign, and his place be filled, and the wages earned by another. The right to the compensation grows out of the rendition of the services, and not out of any contract between the government and the officer that the services shall be rendered by him. They may be paid for in fees at one time, in salary at another, and either may be increased or diminished in amount at any time, before they are earned.” See also Gillespie v. Mayor, 6 Daly, 286; Smith v. Mayor, 37 N. Y. 518; and authorities collated in N. Y. L. J., June 11, 1900, p. 866. *“*The cases * * * distinctly decide, that the relation between such public officers ,and the authority superior to them, is not that of contractors with each other, and that a claim to official emolument cannot be -based upon the idea of a property interest in the office or of that of an agreement to pay the same.” McVeany v. Mayor, 80 N. Y. 185, 190; and see Long v. Mayor, 81 id. 425, 428; Nichols v. MacLean, 101 id. 526, 533. Public officp is intended for the public good, and not for the particular gain of the incumbent. It is a mere agency or trust. The statute applicable to the plaintiiFs salary-provides that “ The number of duties of all * * * clerks, employees, and subordinates in every department * * * with their respective salaries * * * shall be such as the .heads of the respective departments shall designate *695and approve ” etc. Consol. Act, Laws of 1882, chap. 410, § 48. The resolution of January 23, 1895, was therefore a lawful exercise of power by the department, necessitated, as it claims, by a reduction in the appropriation made to the department by the board of -estimate and apportionment. Even if the question were open to dispute, the acceptance of the salary by the plaintiff under the claim by the defendant that it was in full, based upon said resolution, was the settlement of a disputed demand, and constitutes a good accord and satisfaction. There must be judgment in favor of the defendant.

Judgment for defendant.