Haswell v. Mayor of New York

9 Daly 1

• Court: New York Court of Common Pleas
• Decided: February 3, 1879
• Status: Published

Opinion

Van Brunt, J.

[After stating the facts as above.]—The resolution of the Board, and the letter of the plaintiff, seem to indicate beyond much doubt that it was the understanding of the parties, at that time at least, that no compensation was to be paid for the services of the honorary engineer.

That the plaintiff so understood it, seems to be clearly indicated by the tone of his letter. He says : “ in testimony of my appreciation of the honor, submit that it will afford me great pleasure to discharge the duties of engineer whenever the Board shall see fit to intrust them to me.”

If the plaintiff was to receive full compensation for all the duties that he was to perform, it is difficult to see how his performance, of the duties of engineer, under such circumstances, could in any way testify his appreciation of the honor which he says the Board had conferred upon him. It is probable that the plaintiff would have performed these duties without the honor, if he was to receive full compensation therefor.

It would seem to be plain that the plaintiff intended in some way to show his - appreciation of the honor conferred upon him by the Board by performing the duties of engineer, and as he could not show such appreciation by performing such duties, receiving full compensation therefor, he must have understood that performing the duties attached to an honorary office, he was to receive no pay, and in that way testify to his appreciation of the honor.

It was urged that no evidence of the acceptance of the offer of the plaintiff was shown. It is sufficient to say that the resolution of the Board was an offer to the plaintiff, and his letter to the Board was an acceptance of the offer, and that a complete contract was entered into.

The subsequent audit of the bill of 1872 cannot help the question. If no indebtedness arose in consequence of the performance of the work, the Board of Health by the auditing of a bill could not create a liability. They could only audit where a liability existed and which is adjusted by the audit, but they cannot by their audit create a debt.

The plaintiff’s exceptions must be overruled and judgment entered for the defendants.

Charles P. Daly, Ch. L, and Larremore, J., concurred.

Exceptions overruled, and judgment ordered for defendants.

*

The judgment entered upon this decision was affirmed by the Court of Appeals, June 1st, 1880 (see 81 N. T. 255).