5 Daly (N.Y.) 274

Thomas Sweeny against The Mayor, Aldermen and Commonalty of the City of New York.*

An attendant on the Court of Common Pleas for the city and county of New York, appointed under the act of 1863 (L. 1853, c. 529), who performs the duties in connection with that court which formerly devolved on the regularly appointed constables or marshals, such as attending the court during its sittings, preserving order, taking charge of juries during their deliberations, taking into custody persons committed by the court until they are transferred to the custody of the sheriff, and who takes the constitutional oath of office, and is sworn when taking charge of a jury, is an officer of the city and county of New York within L. lStO, c. 382, § 3, by which the board of supervisors were prohibited from increasing the salary of any officer then in office.

Appeal by defendant from a judgment of this court entered on the verdict of a jury at trial term.

The complaint alleged that under the provisions of L. 1853, c. 529, the plaintiff was appointed by the Court of Common Pleas, on February 18th, 1868, an attendant on said court, and. that thereupon he entered upon the performance of his duties as such attendant, and continued to perform the same up to November 1st, 1873; that by a resolution of the board of supervisors of the county of New York, duly passed on May 26th,, 1870, and approved by the mayor on May 27th, 1870, and to take effect from the first day of June, 1870, the compensation to be paid to the plaintiff as such attendant was at the rate of $1,500 per annum; that, notwithstanding the passage and adoption of this resolution, he was paid at the rate of $1,200 only per annum (the rate fixed by said board on December 20th,, 1866), and continued to receive payment at that rate up to July 19th, 1872 ; that the balance of salary due him for the period from June 1st, 1870, to July 15th, 1872 (computing his salary at the rate of $1,500 per annum) was $639 55, which sum he claimed to recover.

The answer alleged that by L. 1870, c. 382, § 3, which took effect on April 20th, 1870, it was provided that the board of *275supervisors of the city and county of New York should not increase the salary of any officer then in office, and that the plaintiff was an officer then in office in said city and county, and that the resolution increasing his salary was therefore wholly void and invalid.

The answer also alleged that the plaintiff, had released the defendant from all further claim for salary for the period named.

At the trial the court held that the resolution of the board of supervisors was not invalid, and submitted the question o£. the release to the jury, who found for the plaintiff.

E. Delafield Smith, for appellant.

Elliot Sandford, for respondent.

J. F. Daly, J.

The plaintiff is a public officer, and' the1 position he holds as an attendant or officer of the Court of Common Pleas is a public office (People ex rel. Henry v. Nostrand, 46 N. Y. 381). He performs the public duty of attending the court during its sittings, preserving order, taking charge of juries during their deliberations, and taking into custody persons committed by the court until they are transferred to-the custody of the sheriff. In this court, at least, he takes the constitutional oath of office, and is sworn when taking charge of a jury. He receives a special appointment to the position,, is one of a prescribed and limited number of such functionaries (Act of 1872, ch. 438), receives a fixed remuneration in the shape of a yearly salary, now fixed by the common council. (Act of 1872, ch. 438) and formerly by the board of supervisors (Act of 1853, ch. 528), to which he is entitled until removed he holds his place during the pleasure of the appointing power,, and is removable only by direct notice (Jarvis v. The Mayor, 2 N. Y. Leg. Obs. 396). The fact that in different statutes he-is called “attendant” (Act of 1870, ch. 382, § 9; Code, § 28),. or “assistant” (Act of 1870, ch. 582), or “officer,” does not affect the question; it is to be decided with reference to the character of his duties. He comes within the definition of officer cited in the case of The People ex rel. Henry v. Nostrand *276(46 N. Y. 381), and approved, therein. His duties are inseparably connected with the administration of justice, in the conduct of the business of the court when open to the public for the trial of causes. Such duties have never been performed except by officers. Formerly they devolved upon the regularly appointed constables or marshals, of whom a sufficient number were to be summoned by the sheriff to attend the sittings of the court (2 E. S. 289, § 83). At common law the sheriff, in his ministerial capacity, is the immediate officer of all courts of record, to execute their writs and process, and enforce obedience to their orders. It is his ordinary duty to provide attending officers while they are in session, to preserve order, execute the orders, and aid in the performance of the duties of the court; and in case of his neglect or refusal to do so, such courts have the incidental power to appoint such officers, for otherwise they could not hold a court (Com. Dig. Courts, P. 4; Bac. Ab. Courts, E; State v. Trall, 2 Const. R. [S. C.] 766; State v. Monk, 3 Ala. 215).

By the Code it became the duty of the supervisors to provide attendants for the courts, and if they failed to do so, the sheriff was obliged to, upon the order of the court (Code, § 28). By a subsequent act, the courts in the city of Hew York were empowered to appoint such officers (Act of 1853, ch. 528). This was among the powers confirmed by the Constitution (Const, art. 6, § 12, Amendment of 1869). A removal of such power was attempted in 1870 (L. of 1870, ch. 382, § 9), but two years later a statute was passed by the Legislature, reposing the power of appointing their own attendants in the several courts in the "city of Hew York, where it has remained for so many years, and where, considering the nature of the duties to be performed by such officers, and their connection with the administration of justice, it properly belongs (Act of 1872, ch. 438). These attendants, so appointed and superseding the constables and marshals, possess all the powers of the latter while attending the sittings of the court—no'more and no less. The case of the plaintiff is to be distinguished from that of Sullivan (Sullivan v. The Mayor), who was the janitor of one of the district courts in this city. Sullivan’s duties were, to take *277charge of the rooms where the court was held, and keep them and the court property safely. He had no more to do with the administration of justice in the court than the maker of fires or sweeper of the floors.

The plaintiff was appointed an attendant in this court prior to the year 1870, and has held the office ever since his appointment. His salary was fixed by the board of supervisors, on December 20th, 1866, at $1,200. He has been paid at'that rate ever since. He claims, however, 'salary at the rate of $1,500 per annum from June 1st, 1870, by authority of a resolution of the board of supervisors of that date fixing the salary of such attendants at $1,500 per annum—an increase of $300 per year. This action is brought to recover such increase from June 1st, 1870, when the supervisors fixed the salary at $1,500, to July 15th, 1872. Payment of the increase is resisted by the corporation, because the supervisors were prohibited by law from making such increase. It appears that the statute of April 26th, 1870 (L. 1870, c. 382, § 3), enacted as follows: “ The supervisors are prohibited from creating any new office or department, or increasing the salaries of those now in office.” The act in which this provision is found is the annual tax levy act for the county. A similar provision in a similar act passed in 1869 was held by the Court of Appeals to be constitutional (Sullivan v. The Mayor, 53 N. Y. 652, overruling a decision to the contrary contained in the opinion in same case in this court reported in 45 How. Pr. 152); and this provision is equally within the single scope and purpose of the local act in which it is contained. Such restriction on the powers of the board of supervisors of this county left them no authority to make the increase attempted by their subsequent resolution of June 1st, 1870, because that provision of law was applicable to persons in office, as this plaintiff was, at the time it took effect. It is said that the office held by plaintiff was not intended to be included in the prohibition of the 3d section of said act, because in the 9th section of the same act it was enacted that attendants on the courts should be appointed by the comptroller and their compensation fixed by him. This only shows that the supervisors had no authority after that act to fix his salary at any *278•sum. At all events, the only authority for the increase was the :resolution of the board; and whether that resolution to increase was in respect of a salary they had or had not a right to fix, it was equally in violation of an express'prohi'bitory statute.

The judgment must be reversed, and judgment absolute -entered for defendants.

Daly, Ch. J., and Robinson, J., concurred.

Judgment reversed, and judgment absolute ordered for -defendants.

Sweeny v. Mayor of New York
5 Daly (N.Y.) 274

Case Details

Sweeny v. Mayor of New York
Decision Date
May 1, 1874

5 Daly (N.Y.) 274

New York



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