Hobbs v. City of Yonkers

• Decision Date: 23 March 1886
• Citation: 5 N.E. 778,102 N.Y. 13
• Parties: HOBBS v. CITY OF YONKERS.
• Court: New York Court of Appeals Court of Appeals

102 N.Y. 13

5 N.E. 778

HOBBS

v.CITY OF YONKERS.¹

Court of Appeals of New York.

Filed March 23, 1886.

Appeal from order general term supreme court, Second department, affirming judgment for defendant.

Matt. H. Ellis, for appellant.

Theodore Fitch, for respondent.

MILLER, J.

On the fifteenth of June, 1877, the common council of the city of Yonkers passed a resolution consenting to and advising the appointment of the plaintiff as treasurer of said city. At the suggestion of some of the members of the common council, one of their number presented to the plaintiff a paper, stating, in substance, that if the plaintiff was confirmed as treasurer he agreed to pay into the city treasury all fees and percentages received by him as such treasurer in excess of $2,000 per annum. The plaintiff signed the paper, which was returned to the common council, and ordered to be placed on file, and thereupon the mayor appointed the plaintiff as city treasurer. On the ninth of July, 1877, the plaintiff duly qualified as said city treasurer, and gave the bonds required by law, and continued to act as such treasurer until November 29, 1881, and until his successor was appointed and qualified. The appointment of the plaintiff was made in pursuance of chapter 35, Laws 1873, which authorized the mayor to make the appointment with the approval of the common council. At this time the compensation fixed by law was 1 per cent. on all payments made by him. By chapter 119, Laws 1878, the city charter was amended, and, among other things, the common council was authorized to fix and limit the amount of compensation of the city treasurer at a sum not exceeding $2,000 a year, on or before the commencement of his term of service, and the amount of fees and percentages received by him in any one year in excess of the sum so fixed and limited by the common council shall be retained to the use of the city. The statute also provided that the term of the city treasurer should commence on the first Tuesday of June, 1878, and at any time thereafter the common council had the right to fix the salary of the plaintiff at $2,000 a year. After the last-named time the common council allowed the plaintiff to continue in office over three years, and until his successor was appointed, without fixing his salary, as they had a right to do, evidently relying upon his agreement to serve for $2,000 a year. But for that agreement it is fair to assume they would have adopted a resolution fixing the salary. The plaintiff having assented to the arrangement, the amount named in the agreement may be considered as the salary to which he was entitled, the same as if it had been fixed by the common council, and he is estopped from claiming that the salary was not $2,000 for the time after the first Tuesday of June, 1878. Under the circumstances it may fairly be assumed that he acted as if his salary had been fixed at that sum. No point was made on the trial that the plaintiff could, in any event, have recovered more than $2,000 for the first year ending on the first Tuesday, 1878, and no distinction was made between what salary accrued before and what after that date.

When the plaintiff was appointed, he was entitled to a percentage on all moneys received by him, and no authority existed in the common council to change the compensation thus fixed, and the writing signed by the plaintiff was, of itself, inoperative for any such purpose. Nor was any sum afterwards fixed by action of the common council, or any new appointment of the plaintiff made. He remained in office until his successor was appointed, discharging the duties as he had previously done, and receiving a compensation of $2,000 a year therefor. Each year he rendered an account, and paid all his receipts into the city treasury, except that he retained the sum of $2,000 annually, which was allowed him for his compensation. Upon this basis his accounts were adjusted, and during the whole of his term as city treasurer he made no claim for any further compensation than the amount which had been agreed upon. The agreement was a voluntary one, and there is no sufficient ground for claiming that any fraud or deceit was practiced, by means of which the plaintiff was induced to forego his right to the full compensation provided by law for his services, and to accept the amount fixed in lieu thereof. The...