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form such other duties as might be enjoined upon him by ordinance or resolution of the city council.” The same ordinance prescribed the compensation he should receive for surveying, subdivding or giving the grade of any lot or piece of ground within the city, and furnishing a certificate thereof—which compensation was to be paid by the parties at whose request such work was done. The ordinance is silent as to fees to be paid the city surveyor for all other services. It was admitted at the trial that he had received full compensation for such work as the ordinance prescribed fees. The suit was instituted to recover for the performance of various duties, imposed upon him by ordinance or resolution, for which no fees were fixed. The plaintiff proceeded upon the notion that upon an implied assumpsit he was entitled to recover from the municipal corporation whatever his services were reasonably worth for the discharge of all duties for which the ordinance allowed no compensation.

It is competent for the city council to increase or diminish the fees pertaining to the office of city surveyor, or abolish them altogether. Its incumbent, if the fees be diminished or entirely taken away, may at once resign. As the relation between himself and the city does not rest upon contract, he is not legally bound to continue his services until the expiration of his term. But having accepted the office, as long as he performs its duties, the measure of his compensation must be determined by the city authorities.

Where the relation of employer and employee exists both parties are bound by the terms of the contract. If either party vio- . lates his agreement with the other, he may sue for breach of contract. If the employer discharge the employee before the expiration of his term of service, he can be made to respond in damages. But between a municipal corporation and its officers, a very different relation exists. If an officer neglects to perform his duties, the municipality has no remedy against him for breach of contract. At his pleasure he may relinquish his office. His remuneration for services to be rendered may, in the absence of any charter restriction, be changed from time to time at the will of the city council. In the City of Hoboken v. Gear, 3 Dutcher, 278, the court says: “An appointment to a public office, therefore, either by the government or by a municipal corporation, under a law fixing the compensation and the term of its continuance, is neither a contract between the public and the officer that the service shall continue during the designated term, nor that the salary shall not be changed during the term of office. It is, at most,

a contract that while the party continues to perform the duties of the office he shall receive the compensation which may from time to time be provided by law." See, also, Baker v. The City of Utica, 19 N. Y. 326; Smith v. The Mayor of New York, 37 id. 520: The Commonwealth v. Bacon, 6 Serg. & Rawle, 322.

As the city surveyor entered upon the performance of the duties incident to his office with reference to the provisions of the city charter and ordinances, no assumpsit is implied on the part of the corporation in respect to his services. 1 Dill, on Mun. Corp. S. 169, and cases cited.

That during the year the plaintiff in error served the city of Central the duties of the city surveyor were more onerous than usual, by reason of the great fire that had destroyed a large portion of the city, cannot be held to affect or modify the rule here laid down. A departure from it cannot but be fraught with mischief to the public service. Whether the dictate of common honesty, under the peculiar state of facts presented by the record in this cause, should have prompted the city council to make the city surveyor additional allowance for his services, it is not our province to determine.

· It will follow from what we have before said in relation to implied assumpsit, that the offer to prove that the city council had paid its former "surveyors on bills presented from time to time irrespective of said ordinancewas properly rejected. The judgment of the court below is affirmed with costs.

Affirmed.

FITZSIMMONS V. CITY OF BROOKLYN.

Court of Appeals of New York. June, 1886.

102 N. Y. 536.

FINCH, J. This case presents the question whether an officer entitled by law to a fixed annual salary, but prevented for a time by no default of his own from performing the duties of his office, and earning during that time the wages of another and different employment, must deduct them from his recovery when he sues for his unpaid salary.

The plaintiff was a policeman of the city of Brooklyn, duly appointed to that office and having entered upon the performance of its duties. He was attempted to be removed from office by the police commissioners, but upon a certiorari the order of removal was reversed and the plaintiff restored to his office. Between the order of removal and that of restoration he rendered no service as policeman, because not permitted so to do, but during the interval resumed for a time his old occupation as a machinist, and that failing, engaged in work at Schutzen park, the character of which is not disclosed; and from these two sources earned during the period of his removal the sum of $500. The defendant conceded that plaintiff was entitled to recover the unpaid salary of his office, but insisted that his earnings of $500 should be applied upon and deducted from it. The court refused the deduction, the General Term affirmed the judgment, and the defendant brought this appeal.

The rule sought to be applied by the city to the claim of the plaintiff finds its usual and ordinary operation in cases of master and servant and landlord and tenant; relations not at all analogous to those existing between the officer and the state or municipality. The rule in those cases is founded upon the fact that the action is brought for a breach of contract and aims to recover damages for that breach, or compensation for the servant's loss actually sustained by the default of the master. That loss he is required to make as small as he reasonably can. His discharge without just cause is not a license for voluntary idleness at the expense of the master. If he can obtain other employment he is bound to do so, and, if he engages in other service, what he thus earns reduces his loss flowing from the broken contract. But this rule of damages has no application to the case of an officer suing for his sal. ary, and for the obvious reason that there is no broken contract or damages for its breach where there is no contract. We have often held that there is no contract between the officer and state or municipality by force of which the salary is payable. That belongs to him as an incident of his office, and so long as he holds it; and when improperly withheld he may sue for it and recover it. When he does so he is entitled to its full amount, not by force of any contract, but because the law attaches it to the office; and there is no question of breach of contract or resultant damages out of which the doctrine invoked has grown. We think, therefore, it has no application to the case at bar, and the courts below were right in refusing to diminish the recovery by applying the wages earned. The judgment should be affirmed, with costs.

Judgment affirmed. All concur.

But one who is rightfully suspended has no claim for salary even if reinstated. Embry v. United States, 100 U. S. 680.

O'LEARY V. BOARD OF EDUCATION.

Court of Appeals of New York. June, 1883.

93 N. Y. 1.

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MILLER, J. The plaintiff claims to recover for his salary as a clerk in the employment of the board of education, from the first of May, 1871, to the 26th of September, 1871, when the finance committee by a resolution, directed that he be removed, and that his removal take effect from the 1st of May, previous. The plaintiff was appointed to his position in 1869 and rendered services until November, 1870, when he made application, stating that he was about to have an operation for cataract performed, and asking for leave of absence until his sight should be restored. Upon the letter asking for leave, and filed with the board of education, was an endorsement, signed with the initials of the chairman of the finance committee, to the effect that it was granted with inquiries to be made from time to time by the clerk of the board. It would thus seem that the board of education had cognizance of the application and through its financial officer signified its assent to the same. The plaintiff had an operation performed, and reported at the office of the board in February, 1871, but being still unable to perform any duty, on account of his eyes, he was obliged to have another operation performed in the month of March. He again reported in May, 1871, and stated to the president of the board and one of the officers that he was advised to go to Ireland for the benefit of his health. He presented to them the doctor's certificate and they told him he could go. Upon the facts stated there would seem to be no question but that the plaintiff acted under a belief that he had leave of absence which authorized him to go to Europe on account of the difficulty under which he

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labored, and it would seem that the officers of the defendant, with whom he had communication on the subject, must have supposed that such was his intention. It is true the leave of absence was somewhat indefinite, no time being fixed by which it was limited to any particular period; but the leave of absence which was granted could have been withdrawn at any time by the defendant, or, in the discretion of the board, brought to an end by a notice to plaintiff that his services were no longer required, or a resolution discharging him from his position would have relieved the defendant from the effect of the permission granted to him and exonerated it from all liability. This was not done until September following, as already stated, when he was informed that his services were no longer required. That the defendant considered the plaintiff in its employment until he was thus discharged is indicated very clearly by its action in regard to the payment of his salary. The pay-rolls for the months of May and June show that the plaintiff's salary for these months was audited by the auditing committee of the board. The defendant thus recognized that the plaintiff was still in its employment and entitled to pay as one of its employes. This was an approval and a ratification of the leave which had been previously granted, and even if such leave orig. inally, of itself, was insufficient, the subsequent action in allowing plaintiff the amount of his salary he claimed to be entitled to, evinces that the defendant assented to his absence and considered him still in its employment. The plaintiff was clearly entitled to the amount of salary which had been audited to him for the months of May and June, nor are we able to see any reason why he should not be entitled to his salary subsequent to that period and up to the time when the resolution of removal was adopted. He left for Europe on the 15th of May, and at that time no action had been taken by the defendant. He was clearly entitled to his salary up to that date, and the auditing of the bills continued it up to the 1st of July. After that and until the early part of September the

. public schools were closed, as was also the office of the department and the general office, and all the employes went on their vacation. There was then no service for the plaintiff to perform during this period, and he had the leisure which was allotted to all in the department and to which he was clearly entitled with them.

The defendant having excused the plaintiff for good cause and sufficient reasons from a temporary discharge of his duty, and failing to take any action indicating its intention to relieve him from his office, we think must be regarded as assenting to his ab

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