#### Albert Emmitt, App’lt and Resp’t, *v.*The Mayor, etc., of the City of New York, Resp’t and App’lt.

*(Court of Appeals,*

*Filed June 23, 1891.)*

Municipal corporation—Mew York City—Aqueduct commission—Has no power to suspend inspector without pay.

The aqueduct commissioners of the city of New York have no power to suspend an inspector for a given time without pay. His compensation is fixed and accompanies the oifice until he is removed or a new rate of compensation consented to.

Appeal from a judgment of the New York superior court, general term, reversing judgment in favor of defendant

*Lyman E. Warren,*for pl’ff; *D. J. Dean,*for def’t.

Gray, J.

I can perceive no distinction in principle between the main legal question involved in this appeal and that which was passed upon in the case of *Gregory*v. *The Mayor,*113 N. Y., 416 ; 22 N. Y. State Rep., 703.

The right of the plaintiff to recover for the periods of time during which he was under suspension is not essentially different from the right of the plaintiff which we sustained in the other case. Here the plaintiff was appointed by the aqueduct commission an inspector of masonry, and his employment in that capacity was evidenced by a written certificate of appointment. Neither *908the term of office nor the compensation to be paid were stated therein. As it was provided in the act creating the commission, that the commissioners might appoint and fix the compensation of persons to supervise and inspect all work authorized by the act to be done, the effect of such an appointment was to make its duration dependent upon the good behavior of the appointee or the pleasure of the commissioners.

The office of inspectors being one created by the act, when filled the incumbent became more than a mere ordinary employe or laborer engaged by the commissioners. Besides, it appears that his candidacy for the office must have been fortified by a certificate from the civil service commission, and his qualifications further certified to by at least three of the aqueduct commissioners. Such an employe upon the work cannot be classified or regarded as a temporary or occasional laborer. He fills an office, with certain more-or less important responsibilities attached to it, and he becomes entitled to receive the compensation as it was fixed by the commissioners until they see fit to discharge him. That power unquestionably is inherently theirs and that is not disputed: but where is to be found the power to suspend the incumbent of the office without pay? Nothing in the act, vesting the commissioners with powers, leads us to infer such a power as to suspend an officer without pay.

The only discretion which we find existing, with respect to engineers, supervisors or inspectors, is as to when and where they shall be appointed, and what shall be their compensation when appointed. Counsel for the city argues that the act creating the aqueduct board was designed for a special purpose, and that when the work of supplying New York city with an increased supply of pure water is completed, the commissioners, and all holding office under them, become *fundi officio.*He, therefore, finds in such features ground for distinguishing such a departmental body from the board of excise, which is a permanent department of the local government; and so, from the difference in the feature of permanency of the two commissions, and in the nature of the duties of the inspectors appointed under each, as affected by the character of the work they are engaged upon, he deduces the proposition that there is a necessity for inferring the existence of a power in the aqueduct commissioners to suspend an inspector without pay. In that way he endeavors to avoid conflicting with the rule in the *Gregory*case. So far as his argument is based upon the difference in the'creation, duration or municipal relations of the two commissions, I fail to perceive its force; while the argument drawn from the nature of the duties and the character of the work is sufficiently met by the suggestion, that being a matter concerning the compensation, it could have been arranged for at the ti.me of the appointment The commissioners had power to fix that to suit themselves; but they had to fix it, and it could not be left to be dealt with arbitrarily. It was subject to change by the consent of the employe; but, when fixed, the compensation accompanied the office until the official was removed or a new rate of compensation was consented to.

*909In *Gregory*v *The Mayor, supra,*the plaintiff was an inspector of excise, and he sued to recover payment of his salary for the time he was suspended by a resolution of the commissioners of excise. The argument was that he was a mere employe, having no fixed term. of employment, and whom the commissioners in suspending, in fact, discharged. Notice of suspension, it was argued, was a discharge from duty and pay until, in their pleasure, the board should re-employ him upon duty.

The argument was unsuccessful and we held that the power to suspend could not be inferred from the power to remove, nor be deemed inherent, and that it could not be regarded as a lesser power compressed within the greater. It was considered that nothing in the circumstances of the case showed an inherent necessity for the inference of the existence of the power to suspend from the grant of the power to remove. I admit the force of the suggestion of the learned counsel for the city that there might be occasions when the work would not require the active performance of the duties of such employes; but that would be a reason for regulating the method of their compensation by some agreement. The compensation was left wholly to be fixed by the commissioners and the rate and condition of payment could perfectly well have been the subject of agreement between them and their appointee. In my opininion, therefore, as the office of inspector was one which the act empowered the commissioners to fill by appointment, the incumbent derived from his' office the right to receive the emoluments belonging to it, until discharged; and that temporary or indefinite suspension without pay was not within the powers of the commissioners to effect arbitrarily. But, as the compensation was to.be fixed by the commissioners, it was perfectly competent for them to agree with the plaintiff with respect to it. It is only when the salary of an official is fixed by the law that it is beyond the power of those by whom he has been employed to agree upon some other figure, or to affect it in any way. *People ex rel. Satterlee*v. *Police Board,*75 N. Y., 38, and *Kohn*v. *State,*93 id., 291, recognize that principle distinctly. Hence, though this plaintiff .was entitled to recover the compensation fixed by the Aqueduct Board, while he remained in office, when he subsequently agreed that if suspended by the aqueduct commissioners, his pay should cease from that time, subject to their direction, the agreement constituted a waiver on his part and was a regulation as to his compensation, which it was perfectly competent and lawful to agree upon and which thereafter regulated the. amount and mode of payment of the compensation he would be entitled to while continuing in office.

These views lead to an affirmance of the order and judgment below; and as both parties have appealed, it should be affirmed, without costs to either party as against the other.

All concur, except Finch, J., absent.

1

 Affirming 38 N. Y. State Rep., 355.