Devoy v. Mayor of New York

39 Barb. 169, 1863 N.Y. App. Div. LEXIS 20

• Court: New York Supreme Court
• Decided: February 2, 1863
• Status: Published

Opinion

By the Court,

Ingraham, J.

The question raised in this case was examined and decided in the common pleas, in Canniff v. The Mayor &c. of New York, (4 E. D. Smith, 430.) It was there held that under the act of 1851 the supervisors might fix the salary of the clerk of a police court, and that he could recover the same from the defendants. The same rule would apply to a subsequent increase of salary more especially if such increase was in pursuance of an act of the legislature, or was subsequently ratified by them.

The change of the appointing power from the defendants to the board of police did not relieve them from liability to pay whatever they were bound to pay before.

The same principle was stated by Nelson; Oh. J. in The People ex rel. Lynch v. The Mayor &c. (25 Wend. 680, 685,) in which the judges of the sessions sought to recover from the defendants the salary given by the statute. He says: “ This was a legal duty enjoined by competent authority, which the corporation are bound to discharge. It is as binding on them as if entered into under their corporate seal.”

These cases are so conclusive on this question that no further examination is necessary."

Judgment affirmed with costs.