Peck v. Belknap

• Decision Date: 20 January 1892
• Citation: 29 N.E. 977,130 N.Y. 394
• Parties: PECK v. BELKNAP et al.
• Court: New York Court of Appeals Court of Appeals

130 N.Y. 394

29 N.E. 977

PECK

v.BELKNAP et al.

Court of Appeals of New York.

Jan. 20, 1892.

Appeal from supreme court, general term, fifth department.

Action by William T. Peck against George Belknap, impleaded with Cornelius R. Parsons, as mayor, etc., of Rochester, and others, for an injunction to restrain the mayor from entering into a contract with Belknap, and to enjoin the payment for services thereunder. Plaintiff appeals from an order reversing a judgment for plaintiff. Reversed.

John H. Hopkins, for appellant.

Henry J. Sullivan, for respondents.

BROWN, J.

This action was brought by the plaintiff as a tax-payer of the city of Rochester to procure a judgment restraining the mayor of said city from entering into a contract of employment with the defendant Belknap on behalf of the city, whereby said Belknap was to render during a designated period certain services relating to street lights, particularly set forth and enumerated in a resolution of the common council, and to restrain the city clerk and treasurer from drawing upon or paying out to said Belknap from the funds of the city any money under said resolution. The ground upon which this judgment was sought was that Belknap had not passed the examination which, under the civil service law of the state and the regulations prescribed by the mayor, it was essential he should pass before entering into the public service of the city. It appeared that about November 1, 1887, the common council of the city had by resolution authorized the employment by the lamp committee of some person to whom the policemen of the city were to be required to report the number of street lamps unlighted, and who should keep a book, which should contain a record by streets of the gas and electric lamps of the city, and their location, and which should each day show the number not burning; and, pursuant to this resolution, on or about November 15th, said Belknap had been employed by the lamp committee until April 1, 1888, at a salary of $70 per month; and on November 19th he entered upon the discharge of his duties, and the court found as a fact that he continued to discharge them until the end of the term designated. On December 20, 1887, the common council passed another resolution, which directed the mayor to enter into a contract with said Belknap to perform until April 1, 1888, the duties specified in the resolution before referred to, and, in addition to keeping a record of the unlighted street lamps, he was ‘to perform such other duties as may be connected with the public street-lighting system of the city, * * * as may be required by said committee or this common council, and to furnish to said committee and the common council written reports upon any of the subjects aforesaid,’ and for which he was to receive as compensation the sum of $313.33 in three equal payments on the 1st days of February, March, and April. This resolution was vetoed by the mayor, on the ground that it was in contravention of the civil service law of the state, but was subsequently repassed over the veto by the common council by a two-thirds vote. It further appeared that the regulations for the admission of persons into the service of the city, prescribed by the mayor and approved by the civil service commission, applied to all positions in the public service except to ‘election officers, subordinates of the city treasurer, and persons employed by or who seek to enter in the service under the board of education.’ That, with that exception, the service was classified as follows: ‘Schedule B, [part 1.] All officers and members of the police and fire department. [Part 2.] All other subordinate officers and assistants.’ ‘Schedule D. All persons employed as laborers or day workmen.’ For appointments under Schedule D, no examination was required. Applicants for appointments under Schedule B were to be examined as provided in the regulations, and appointments to any positions in part 2 were to be made from persons whose names were certified by the board of examiners. It was not disputed that Belknap's name had not been certified by the board of examiners, nor that he had never been...