#### Martin O. Munch, Respondent, *v.*The City of New York, Appellant.

(Supreme Court, Appellate Term,

April, 1905.)

New York City — Coroner cannot fix salary of clerk — Appeal — Judgment absolute for defendant.

The salary of every person paid from the treasury of the city of New York must be fixed by the board of aldermen, upon the recommendation of the board of estimate and apportionment (Greater New York Charter, § 56), and a confidential and private clerk appointed by a coroner at a salary of $1,500 cannot maintain an action against the city for the salary.

Where upon appeal from a judgment in favor of plaintiff, it is1 apparent that no different state of facts could be shown upon a new trial, there must be judgment absolute for defendant.

Appeal by.the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, thirteenth district, borough of Manhattan.

John J. Delany (Theodore Connoly and Arthur Sweeny, of counsel), for appellant.

Meyer Greenberg, for respondent.

*129Scott, J.

The plaintiff sues for salary as *“*private clerk to Coroner Goldenkranz,” one of the coroners of the city of New York, for the months of September, October and November, 1902. The pleadings and evidence show that Solomon Goldenkranz became a coroner on January 1, 1902. That there were then attached to the coroners’ office a number of persons designated as *“*assistant clerks,” appointed from the classified competitive civil service; list, one of whom, named George Wahl, acted as private or confidential clerk to coroner Goldenkranz until September 1, 1902, although not specially appointed or designated as private clerk. On August 27, 1902, coroner Goldenkranz appointed plaintiff as his “ confidential and private clerk,” at a salary of $1,500 per annum, his duties to commence, on September 1, 1902. On the same day the board of coroners ratified and approved the appointment, and due notice thereof was given to the boards of civil service commisr sioners. This appointment was not made from any competitive list, and the municipal service commission refused to recognize the appointment, insisting that the position to which plaintiff was appointed properly belonged in the classified list, the coroners insisting that the position fell within the exempt class as defined by subdivision 3 of section 12 of the Civil Service Law. This difference of opinion between the municipal civil service commission and the coroners resulted in an application by the coroners for a peremptory writ of mandamus, requiring the municipal civil service commission to place in the exempt or noncompetitive class the position of clerk to each of the said coroners, and in due course the mandamus issued as prayed for. The result of this proceeding amounted to a judicial determination that each coroner was entitled, and had been from the beginning of his term of office, to appoint a private clerk without reference to any competitive list of eligible persons. Hence the appointment of plaintiff by coroner Goldenkranz, on August 27, 1902, was legal and valid. This, however, does not determine his right to recover the salary he sues for. It is fundamental that in order to charge a liability upon a municipality it must appear that *130all the provisions of law authorizing such a liability have been strictly complied with, and it follows that where a claim is made for salary by a municipal employee it must appear not only that the applicant has been legally appointed, but that his salary has been fixed by lawful authority. The .coroner by whom plaintiff was appointed undertook to -assign a salary to the position, but it is not shown, nor, as we understand it, even claimed, that he had any authority in this regard, and we are referred to- no statute assigning a salary to the position to which plaintiff was appointed. Section 56 of the present charter provides that, except as in that section otherwise provided, “ It shall be the duty of the board of aldermen, upon the recommendation of the board of estimate and apportionment, to fix the salary of every officer or person whose compensation is paid out of the city treasury,” other than certain classes of persons in none of which is this plaintiff included. This section was in force when plaintiff was appointed. If any salary was ever lawfully assigned to plaintiff’s position it must have been fixed under this section of the charter since his salary or compensation would be paid out of the city treasury, and he is not one of those officers or employees exempted by the terms of the statute from its operation. It does not appear, and is not claimed, that any direct, specific action has been taken by either the board of aldermen or the board of estimate and apportionment fixing the salary to be paid plaintiff. Section 10 of the Greater New York charter was amended by chapter 436 of the Laws of 1902, so as to provide that between January 1 and May 1, in the year 1902, the board of estimate and apportionment might alter, niodify or amend the budget for the year 1902, in! various particulars, and among other things to fix salaries in any of the offices, departments, bureaus, boards or commissions of the city. This act went into effect on April 8, 1902. In order to enable the board of estimate and apportionment to act, the board of coroners for the borough of Manhattan presented an estimate calling for an appropriation of $61,920, to which was appended a list of the persons employed by the coroners, with the salary assigned *131to each. In this list appears the name of George W a hi — assistant clerk, at $1,500. The board of estimate appropriated for the expenses of the coroners’ office the sum of $60,000. Neither plaintiff’s name, nor the position to which he was afterward appointed appeared anywhere in the list appended to the coroners’ estimate, for the sufficient reason that he had not then been appointed, nor his position created. It is clear that the fact of the making of the appropriation for the coroners’ office cannot be construed as a fixation of plaintiff’s salary. It is urged, however, that inasmuch as no claim is made by the city that Wahl’s salary was not properly fixed, and that plaintiff performed after September 1, 1902, the same services that Wahl had performed prior thereto, the legal fixing1 of Wahl’s salary in some way inures to plaintiff’s benefit. This claim will not bear examination. Plaintiff was not appointed in Wahl’s place, because the latter continues to hold the same position and draw the same salary that he did before. Wahl, prior to September first did not hold the position plaintiff now holds, but the same position he had always held and still holds; that of assistant clerk, a position specifically provided for and recognized by, section 1571 of the present charter. All that can be said is that prior to September 1, 1902, Wahl, while holding the position of assistant clerk, performed the duties of private clerk to coroner Goldenkranz. The result is that we find ourselves compelled to hold that during the months in question the plaintiff lawfully held an office to which no salary was legally attached. It follows of course that he cannot recover from the city. As requested by the respondent we have considered as a part of the history of the case necessary to sustain the legality of plaintiff’s appointment the record in the proceeding for a mandamus above referred to, although not included in the return. We have also been furnished by- the respondent with a copy of an opinion of the corporation counsel, addressed to the comptroller under date of March, 1903, referring to the claim for salary for the month of January, 1903, of one of the four coroners’ private clerks. That opinion advised the payment. It appears, however, that the *132estimate for the year 1903, submitted by the coroners to the board of estimate and apportionment, contained, in its schedule of employees and their proposed salaries an item reading *“*four personal clerks, $2,000 each, one to each Coroner.” As already pointed out, the estimate for the months of September, October and November, 1902, contained no such item. The opinion of the corporation counsel as to salaries for January, 1903, does not necessarily conflict vrith the views we entertain as to salaries in 1902.

The judgment must be reversed, with costs, and since it is apparent that no different state of facts could be shown on a new trial there must be judgment absolute for the defendant, with the appropriate costs in the Municipal Court.

Leveetteitt and Geeeetbaum, JJ., concur.

Judgment reversed, with costs, and since it is apparent that no different state of facts could he shown on new trial there must he judgment absolute for defendant, with costs ini Municipal Court.