Judgment reversed, new trial ordered, costs to appellant to abide event.
HATCH, J.:
In its general features this case is brought within the decision in Benjamin v. City of New York ( ante, p. 62), where the judgment was reversed. The principles of law therein enunciated are controlling of the rights of the plaintiff in the present action. In addition to this, it is disclosed by the present record, without dispute, that by rule 27 of the building department, to which the plaintiff was subject, it is required that all employees of such department shall perform such other duties not therein specially prescribed for them as the interest of the departmental service may demand or require in the opinion of the superintendent of buildings; and by rule 5 it is required that all notices of violations of law and others, as may be necessary, shall be served by the messenger or any employee of the department in a careful, exact and proper manner, and the proper returns of such service shall be made immediately thereafter. It was testified by the chief clerk of the department of buildings, and not disputed, that in connection with these rules, he gave to the employees instructions that the affidavits required in the department to be taken were so to be taken as a part of the duty of the respective employees. It must have been understood, therefore, by the plaintiff and the other employees that what they did in connection with the matter, for which they now seek to recover, was a part of the duty which devolved upon them to perform in connection with their employment; and under such circumstances no additional charge beyond the salary received by him, or them, could be properly made therefor. The case is essentially different from Merzbach v. Mayor ( 163 N.Y. 16), as therein the services were recognized to be independent of the official employment, and the charges were made under the direction of the head of the office. He was authorized to incur such charge, and an appropriation had been made for payment of such expenses. No such facts appear in this case. The court was, therefore, not authorized to direct a verdict, and the judgment based thereon should be reversed and a new trial granted, with costs to the appellant to abide the event. Patterson, Ingraham and Laughlin, JJ., concurred.
VAN BRUNT, P.J. (concurring):
I concur with Mr. Justice Hatch in his opinion in this case. I am also of opinion that the plaintiff, being an employee of the city, could make no charge for work done even for the city in office hours. I think that another reason why there can be no recovery in this case is that there is no evidence whatever that any person in the building department could incur any such obligation on the part of the city Patterson, Ingraham, Hatch and Laughlin, JJ., concurred.