#### Palmer *v.*The Mayor, *&c.,*of the City of New York.

Where a part of the items of an account bear date within six years before suit brought, they will not draw after them items of a longer standing than six years, so as to protect them from the operation of the statute of limitations; unless there have been mutual accounts, and reciprocal demands, between the parties.

A special justice of the city of New York, receiving an annual salary for his services in that capacity, cannot recover extra compensation for services performed on Sunday.

This is so especially where he has, at the end of every quarter during his term of office, rendered an account against the corporation for the amount of his salary, and has received his pay, without making any claim for extra compensation,

A public officer receiving a fixed salary for his services, cannot rightfully claim a ■ compensation beyond his salary, for performing a new duty, or one imposed upon him since the salary was fixed; much less if he accepts the office with full knowledge of the resolution requiring the extra duties to be performed.

January 17;

February 17, 1849.

This was an action of assumpsit brought by the plaintiff, to recover compensation for services performed by him on Sundays, as one of the special justices of the city of New York.

*319Upon the trial, the following facts appeared in evidence: On the 1st of October, 1834, the plaintiff was appointed one of the special justices for the city of New York. His commission expired in 1838, and he was then re-appointed, and continued in office until May 30, 1842. The salary attached to the office was $1600 per year. On the 3d of August, 1836, before his reappointment, a resolution was approved by the mayor, having previously passed both branches of the common council, as follows : “ Resolved, That the Police Magistrates be requested to attend, one or more of them, during the Sabbath.” In consequence of this resolution, the plaintiff was in attendance every Sabbath during his continuance in office, and for the services thus rendered, instituted this action. It appeared, that at the end of each quarter subsequent to his appointment, the plaintiff submitted an account to the defendants, made out against the city of New York, as follows : “ Salary as Special Justice for preserving the peace, &c., for the quarter ending this date, $400.” These accounts were paid from time to time, by the comptroller’s drafts upon the city treasurer, payable to and indorsed by the plaintiff.

It was contended, on the part of the plaintiff, that the statute did not require the performance of this duty upon the Sabbath, and that the resolution of the common council was in the nature of a special retainer.

It was contended in opposition to this, that the defendant had rendered no other services than such as were called for by the office, and that he therefore was not entitled to extra compensation ; and in addition to this, that the plaintiff had accepted the office a second time, after the passage of the resolution of the common council, and was therefore well aware of the duties he would be called on to perform ; that the plaintiff was precluded by his accounts rendered, from setting up the claim in suit; and that, at all events, the statute of limitations was a bar to his claim for the services preceding his last appointment.

A verdict was taken for the plaintiff for $1,835 48, being the amount claimed and interest, subject to the opinion of the court.

*320*E. Sandford,*for the plaintiff.

I. The plaintiff’s duties as a special justice, are provided for by the act of *1813;*(Laws of 1813, ch. 86, secs. 24, 25, 26, 43;) and in the due exercise of the powers thereby conferred, the common council, (acting within the scope of their authority,) fixed the compensation of such officers, but exempted them from doing duty on Sunday. (Ibid. sec. 53.)

II. The resolution of the common council, of the 3d of August, 1836, was a retainer or request by the defendants to the plaintiff, to perform extra services which the special justices were not required to do by the statute under which they were appointed.

III. An implied assumpsit therefore arises, that the plaintiff is entitled to recover for the extra work incurred on Sundays at the request of the defendants.

IT. The plea of the statute of limitations does not apply. The first item of the plaintiff’s account was more than six years old, *but the last*is in May, 1842. *(Chamberlain*v. *Cuyler,*9 Wend. 126 ; *Tucker*v. *Ives,*6 Cow. 193.)

*A. J. Willard,*and *Willis Hall,*for the defendants.

I. The plaintiff has rendered no services but such as are called for in the regular discharge of the duties of his office, and is consequently entitled to receive no extra compensation.

(1.) A salaried officer cannot claim extra compensation for services requisite to the fulfilment of his official duty, although arising from the application of unusual vigilance and faithfulness. *(Hatch*v. *Mason,*15 Wend. 44 ; *Bath*v. *Salter,*Hutch’s. Rep. 54; *Phœnix*v. *Supervisor of New York,*1 Hill, 362; *United States*v. *Fillebrown, 7*Peters’, 28.)

(2.) The attendance of the plaintiff at the police office on Sundays, if at all necessary, was called for by the nature of the office. *(Watts*v. *Van Ness,*1 Hill, 76.)

II. The act of 1813, in prohibiting the common council from directing the police courts to be kept open on Sundays, does not convert that into an extra service which would otherwise have been a part of the ordinary duty of the plaintiff, as police officer.

*321(1.) ■ So far as the attendance on Sundays was prohibited by law, the act, being illegal, cannot form the ground work of any claim for compensation.

(2.) If the Common Council had no right to require the plaintiffs to attend on Sundays, the officers had no right to attend.

III. The act of 1813 only intended to prevent the *police, court*from being open on Sundays, but did not interfere with the officers attending at the police offices in the performance of other-duties. On the contrary, it imposes on the special justice the duty of discharging the night-watch *every*morning, which necessarily includes Sundays.

IY. The act of 1844 virtually repeals the prohibition of the act of 1813, in this respect.

Y. If the plaintiff have a valid claim for extra services, it is not against the city, but the state at large; or, if a county charge, against the supervisors.

(1.) The city can only be made liable by virtue of a law imposing a particular duty upon it, or

(2.) In pursuance of some contract, express or implied, neither of which circumstances apply to this case.

By the Court.—Vanderpoel, J.

The question involved in this case was presented to the court more than two years ago, in the case of *Henry W. Merritt,*and was then decided in favor of the plaintiff. One of the then members of the court did not concur in the conclusion to which it then came. Since that period, a partial change has taken place in the organization of the court, which accounts, in some measure, for the discrepancy between the conclusion in the present case, and the one formerly announced in that of *Merritt.*The 37th section of the act to reduce general laws relating to the city of New York into one act, provides that three justices shall be appointed as oftep as it shall be deemed necessary, each of whom shall be denominated, in the commission to him, a special justice for preserving the peace in the city of New York. (2 R. L. 350.) The 43d section, (p. 355) provides that it shall be lawfnl for the Common Council of the city, from time to time, to direct, by an *322ordinance or ordinances, the keeping open of the police office for the transaction of the business thereof, at all such times .(Sundays excepted,) and at such place or places, as may be deemed most beneficial to the public, and that it shall be the .duty of the special justices, and all the officers employed in the police office, to obey such mandate.

The plaintiff was first appointed in 1834. It is admitted that -his commission expired in 1838, and that he was then re-appointed.

In regard to his claim for the period anterior to his last appointment, the statute of limitations is an insuperable bar. That portion of his claim which accrued before six years prior to the commencement of the suit, is not saved by 2 R. S. 224, § ¡6, which provides that in actions of debt, account, or assumpsit brought to recover any balance due upon a mutual, open, and current account, the cause of action shall be deemed to have .accrued from the time of the last item proved in such account. One or more items of an account, within six years before suit brought, will not draw after it items beyond six years, so as to protect them from the operation of the statue of limitations, *unless there have been mutual*accounts and reciprocal demands between the parties. *(Kimball*v. *Brown, 7*Wend. 322; *Coster*v. *Murray,*5 J. Ch. R. 522; *Edmondstone*v. *Thomson,*15 Wend. 554; *Hallock*v. *Losee,*1 Sand. R. 220.) It cannot be pretended that there were any mutual accounts and reciprocal demands between these parties. If the defendants were under a legal obligation to pay for the service for which the suit was brought, the plaintiff might have enforced such payment, if not immediately after the rendition of the service, at least at the end of every quarter. *By*holding, that the statute of limitations is a bar to this portion of the plaintiff’s claim, we do not mean to imply that it would be valid, in the absence of the statute. We do not feel called upon to express any opinion upon the other objections urged against this branch of the claim, as we deem the statute of limitations a conclusive bar to it.

As to that portion of the claim which accrued *subsequent*to the second appointment of the plaintiff, we consider the objections to it conclusive on other grounds. The salary of the jus*323tice had been raised to sixteen hundred dollars per annum. At each quarter, subsequent to his appointment, the plaintiff rendered an account of $400, *“*as salary as special justice for preserving the peace, for the quarter ending” on the day of the date of his account, which account for each quarter, was paid by the defendants. This circumstance, at least, goes far to show the construction which the plaintiff himself then placed upon the rights and duties of himself and the defendants. No charge-for extra or special services was then- made or pretended to by him. The plaintiff, on his re-appointment in 1838, accepted his- office with this resolution staring him in the face—a resolution requesting him to attend at the police office on Sunday, in his official capacity. If he performed these services as part of his official duty when he received a stated salary, lie cannot sustain an extra charge for them, whether recently after rendering the service, he presented a claim or not. But when,- quarter after quarter, and year after year, he presented his account for his salary, without lisping a word about this claim for extra service, it is pretty manifest that the charge is the result of an after thought, and was not contemplated when the service was rendered. But this consideration furnishes not the most formidable impediment to the plaintiff’s action.

If the duty were legitimately imposed upon the plaintiff, and were a duty appertaining to, or connected with, his office, then he could not sustain his action, even if the duties were imposed after his second appointment; for it is well established that a salary officer cannot rightfully claim compensation *extra*his salary, for performing a new duty, or one imposed by the legislature, since the salary was provided. *(Phœnix*v. *The Supervisors of New York,*1 Hill, 362.) If the new duty renders his office too onerous, he can resign. So a constable, or other ministerial officer, the fees of whose official services are prescribed by law, cannot maintain an action on a promise of extra compensation for extra service, although services beyond what could legally be required, are rendered by the officer. In *Hatch*v. *Mann,*(15 Wend. 44,) the Chancellor and Senator Tracy inveigh -with well merited severity against the idea that a promise *324to give extra compensation to an officer for extra diligence or extra service, can be valid.

If, on the other hand, the corporation had no right to exact the service, either because the statute, by excepting Sunday, intended to guard against the performance of any secular seryices oh that day, or, because it was beyond the legal powers of the corporation to request or demand the performance of the service; in either alternative, the law cannot imply a valid promise to pay for the service. In *Watts*v. *Van Ness,*(1 Hill, 76,) it was held that an attorney’s clerk, engaged at a weekly salary to do such things as are usually done by clerks in attorney’s offices, is prohibited, by the statute to prevent working on Sunday, from recovering from his principal a compensation *extra*his weekly allowance, for services as a clerk, performed on that day. If the plaintiff was not compelled to perform Sunday service because *it was Sunday,*then the services were within the prohibition of the statute against working on Sunday, (1 R. S. 675, § 70,) and therefore do not furnish the legitimate ground of a claim against the defendants. If the corporation, in their official or legislative capacity, had no right to make the request contained in their resolution, then they transcended their authority, and could not create a claim against the city by it. If they had a right to request the performance of the service, then it was part of the official duty of the plaintiff, when he accepted his office, on his re-appointment, and was covered and satisfied by his salary. Then he accepted the office in reference to the duties and burthen which belonged to it, this Sunday service being one of them. In every point of view in which we have looked at the case, we find insurmountable difficulties in the way of the plaintiff’s recovering. There must, therefore, be judgment for the defendants.