Stemmler v. Mayor

• Decision Date: 29 November 1904
• Citation: 72 N.E. 581,179 N.Y. 473
• Parties: STEMMLER et al. v. MAYOR, ETC., OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

179 N.Y. 473

72 N.E. 581

STEMMLER et al.

v.MAYOR, ETC., OF CITY OF NEW YORK.

Court of Appeals of New York.

Nov. 29, 1904.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Theodore Stemmler and others against the mayor, aldermen, and commonalty of the city of New York. From a judgment of the Appellate Division (84 N. Y. Supp. 1147) affirming a judgment in favor of defendant, entered on dismissal of the complaint, plaintiffs appeal. Affirmed.

Upon the defendant's motion the complaint was dismissed by the court at the conclusion of the plaintiffs' evidence. The grounds of the motion were twofold: (1) That the plaintiffs had failed to establish a cause of action against the defendant; and (2) that chapter 543, p. 1141, of the Laws of 1894, upon which the action was based, was unconstitutional. In 1869-nearly 35 years ago-John A. Stemmler was elected justice of the District Court for the Seventh Judicial District in the city of New York for the term of six years commencing January 1, 1870. A controversy arose between Stemmler and one McGuire as to who was legally entitled to the office. A litigation to determine that question ensued, and on October 15, 1873, it was decided in favor of Stemmler. From January 1st to October 15th the duties of the office were performed by McGuire, and it is obvious from the plaintiff's admissions made on the first trial and from the papers contained in the record that the salary was paid by the city to him. From that time to the expiration of his term the office was held by Stemmler and he received the salary. He died on the 28th of March, 1875, leaving, him surviving, his widow, Babetta Stemmler, and the former plaintiffs in this action, his only heirs at law and next of kin. Babetta died on the 28th of July, 1892, and Franklin A. Stemmler, who was one of the original plaintiffs, died on the 24th of December, 1899, leaving a last will and testament, by which he appointed Bertha L. Stemmler, one of the present plaintiffs, as his executrix. Nearly 20 years after John A. Stemmler's death and 2 years after the death of his widow the Legislature enacted chapter 543, p. 1141, of the Laws of 1894, upon which this action is based. The plaintiffs and none of their predecessors had any right of action against the defendant independently of the statute of 1894. Indeed, no such right of action is claimed, as the complaint is based exclusively upon the statute.

This action has been twice tried. Upon the first trial the court directed a verdict against the defendant for $35,000 principal and $50,994.86 interest, making a total of $85,994.86. An appeal from the judgment entered upon that verdict was taken to the Appellate Division (54 N. Y. Supp. 288) where it was reversed, and a new trial granted; that court holding that the plaintiffs had not complied with the requirements of section 1 of the statute of 1894, and hence were not entitled to recover. The statute referred to provides:

‘Upon proof that John A. Stemmler was duly elected justice of the District Court in the city of New York, for the term of six years, commencing on the first day of January, eighteen hundred and seventy, and that the salary of the said office was wrongfully withheld from and has not been paid to him for the portion of the said term prior to the fifteenth day of October, eighteen hundred and seventy-three, or any part of that time, pending his contest for said office, and while it was wrongfully occupied by one Joseph McGuire, who has since been finally adjudged by the courts to have usurped said office, which proof shall be satisfactorily established by a certified copy of the judgment of the Supreme Court of this state declaring that said John A. Stemmler was duly elected to said office as aforesaid, and that said Joseph McGuire usurped and unlawfully held said office during said period prior to October fifteenth, eighteen hundred and seventy-three, and by a certificate from the comptroller of the city of New York, that no part of said salary for said period has been paid to said John A. Stemmler or his representatives, the board of estimate and apportionment of the city of New York is hereby authorized and directed to meet and ascertain the amount of said unpaid salary belonging to said John A. Stemmler as such justice at the rates fixed by law and paid to the justices of the other district courts in the city for the same period, and upon the certificate of the said board of estimate and apportionment, or a majority of the members thereof, that no part of the said salary has been paid to either John A. Stemmler or his representatives from January first, eighteen hundred and seventy, to October fifteenth, eighteen hundred and seventy-three, and the amount of said salary for said period, the said comptroller upon such certificate and proofs aforesaid being filed in his office, shall pay the amount of the said unpaid salary, with lawful interest thereon from the day last aforesaid to the heirs of the said John A. Stemmler or their representatives.

‘Sec. 2. The comptroller is authorized to make such payment out of any unexpended appropriations in the city treasury, and, if necessary, to cause the same to be inserted in tax levy for the following year.

‘Sec. 3. This act shall take effect immediately.’

The learned Appellate Division, after calling attention to the remarkable character of the act of 1894, whereby the Legislature, nearly 25 years after the commencement of the term of the office mentioned therein, and nearly 20 years after it ended, sought to impose upon the city of New York a liability for Stemmler's salary for a period during which he performed no service, and after the city had paid such salary to the person to whom the certificate of election had been awarded, who actually performed the service, and when it had no part in determining who was elected, held that, before the city of New York could be rendered liable in an action at law to recover the amount directed to be paid by the act, the plaintiffs must allege and prove that every requirement of the statute had been strictly complied with.

O'Brien, J., dissenting.

Delos McCurdy, for appellants.

John J. Delany, Corp. Counsel (Theodore Connoly, and Terence Farley, of counsel), for respondent.

MARTIN, J. (after stating the facts).

Section 1 of the statute under consideration, after declaring that certain facts should be established, and that they might be established by a certified copy of the judgment of the Supreme Court declaring Stemmler duly elected, provided: (1) That there should be furnished to the board of estimate and apportionment a certificate from the comptroller that no part of said salary for said period had been paid to Stemmler or his representatives; (2) that the board should meet and ascertain the amount of said unpaid salary belonging to Stemmler at the rates fixed by law; (3) that the board, or a majority of its members, should make a certificate that no part of such salary had been paid to Stemmler or his representatives, and the amount of said salary for said period; and (4) that the comptroller, upon such certificate and proofs being filed in his office, should pay the amount of such unpaid salary, with interest, to Stemmler or his representatives. Thus the several acts above enumerated were to be performed before the comptroller could be required to pay. The comptroller's certificate of nonpayment must be presented. The board must ascertain the amount of the claim. It must also make a certificate stating that no part has been paid and the amount thereof. It was only upon the making and filing in the office of the comptroller of such proofs and certificates that a recovery could be had. There was no pretense that a certificate by the board in pursuance of such statute was executed and filed with the comptroller, but it is contended that the insertion in the tax levy for 1895 of the following provision: ‘Claim of heirs of John A. Stemmler or their representatives for salary of John A. Stemmler as Justice of the Seventh Judicial District Court from January 1, 1870, to October 15, 1873, audited and allowed, in pursuance of chapter 543, Laws of 1894, at a sum not exceeding $35,000,’ was sufficient, and all that was required. With this contention we cannot agree. In this connection it is to be observed that section 2 of that act authorized the payment of the claim mentioned in section 1 out of unexpended appropriations, or, if necessary, the amount was to be inserted in the tax levy for the following year. It is quite obvious, we think, that the insertion in the tax levy for 1895 was in pursuance of the provisions of section 2. Indeed, there seems to have been no attempt to comply with the provisions of section 1, and the case is entirely barren of any certificate of such action by the board as was required by that section. Thus the precise question presented is whether the plaintiffs can recover against the city under the provisions of chapter 543, p. 1141, of the Laws of 1894, without any compliance whatever with the requirements of section 1. This action, as has already been seen, was purely statutory, and the plaintiffs could not recover without showing strict compliance with its reuqirements on their part. That they have failed to do, and the trial court granted the defendant's motion for a nonsuit upon the ground that the plaintiffs did not prove facts sufficient to constitute a cause of action. It was held by the learned Appellate Divsion, following its former decision in this case (34 App. Div. 408,54 N. Y. Supp. 288), that the mere insertion in the tax levy by the board of estimate and apportionment of a provision auditing and allowing the claim at a sum not exceeding $35,000, did not, in the absence of proof that a proper certificate was issued by such board to the effect that such salary had not been paid and giving the amount thereof for the period mentioned, constitute a...