#### Robert Hamburger, Respondent, *v.*The City of New York, Appellant.

(Supreme Court, Appellate Term,

February, 1910.)

Municipal corporations — Contracts — Power of district attorney to bind city.

The district attorney of New York county cannot incur an indebtedness on behalf of the city of New York for stenographer’s fees for transcripts of testimony taken in the coroner’s court not within the appropriation allowed by the board of estimate and apportionment for the conduct of his office.

*176Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, second district, borough of The Bronx.

Francis K. Pendleton (Theodore Connoly and Thomas F. Hoonan, of. counsel), for appellant.

Henry K. Davis, for respondent.

Dayton, J.

Plaintiff, stenographer to the coroner’s court, borough of The Bronx, sued to recover $151.60' for certain transcripts of testimony, at the rate of ten cents per folio, furnished to the district attorney through orders received from, various assistants of that office, which amount “was and is a charge-due and payable by the defendant’s comptroller out of public funds.” The trial court gave judgment for the amount claimed. Defendant appeals. The undisputed testimony shows plaintiff’s salary $2,000, and furnishing of transcripts ordered as alleged, the reasonableness of the charge per folio, demand upon the city and refusal of payment. He admits that he can make no extra charge for furnishing “ an abstract of the testimony ” (Consol. Act. *vide*§ 1777), but urges that when, upon request of the district attorney, he furnishes a *“*transcript ” of the minutes of testimony, he may require the city to compensate him therefor in addition to his salary. A *“*transcript ” doubtless involves more labor than an “ abstract,” but we are furnished with no authority holding that the district attorney may bind the city to any expense not within the appropriation allowed by the board of estimate and apportionment for the conduct of his office. Ho recovery here may be had, unless upon section 1768 of the Consolidation Act, which provides that the coroners’ stenographers shall receive a salary *and*six cents per folio for all transcripts made for the use of the district attorney’s office by direction of said board. That provision was not superseded by the Charter Act (Laws of 1897, chap. 398, § 1571), because the provision there for the ap-

pointment of coroners’ stenographers was silent as to *salary and compensation*(Baker v. City of New York, 56 App. *177Div. 350), and by sections 1608, 1610 the Consolidation Act was preserved in effect as to the subject-matter of provisions not revised or included in the Charter Act and not inconsistent therewith. Since the decision in Baker v. New York, *supra,*the matter of the salary of the coroners’ stenographers has been the subject of legislation, one result of which is that the salary is fixed by the board of estimate and apportionment and not by the Consolidation Act. Rev. Charter 1901; Laws of 1902, chap. 435, 436; Hamburger v. Board of Estimate, 109 App. Div., 427. The amendatory provisions here involved relate only to the fixing of salary. The com pensation for transcripts furnished the district attorney’s office, covered by section 1768 of the Consolidation Act, is not the same thing as *salary.*Benedict v. United States, 176 U. S. 360.

Judgment reversed and complaint dismissed, with costs in this court and in the court below.

G-iegerich, J., concurs; Lehman, J., concurs in result.

Judgment reversed and complaint dismissed, with costs in this court and court below.