Opinion
Argued February 7, 1881
Decided March 1, 1881
D.J. Dean for the corporation appellant. Elliot Sanford for appellant Cummisky. Nelson J. Waterbury for respondents.
The plaintiff commenced this action to recover of the city of New York his salary for the year 1879, as janitor of the building in which the sixth district civil court in that city held its sessions. Phillip Cummisky was joined as a defendant upon the allegation that he claimed an interest in the subject of controversy adverse to the plaintiff.
The plaintiff claimed to have been appointed janitor of the court building by the commissioner of public works, and Cummisky claimed to have been appointed janitor of the sixth district civil court by the justice of that court.
The board of estimate and apportionment for the city of New York, in December, 1878, made appropriations for the support of the city government for the year 1879, and they appropriated "to pay salaries of twelve janitors, at $1,200 each per annum in the civil and police courts as follows:" and then the twelve courts are named, with $1,200 opposite to each, among which is the sixth district civil court. The sums thus appropriated amount to $14,400 and at the foot of the appropriation is the following:
"The above appropriation of $14,400 is made specially, as no provision is otherwise made in this final estimate, for the salaries of the janitors of these courts. No portion of this appropriation, however, is to be paid by the comptroller until the question is judicially determined, on an adjusted case or otherwise, in whom by law the appointment of janitor of these courts is placed. It is claimed, on one hand, that the appointment is in the board of police justices and justices of the civil courts, and on the other, that the appointment is in the commissioner of public works. The city is not to be burdened with the expense of two sets of janitors."
By the city charter of 1873 (chapter 335, section 71), it was provided that the department of public works should have the care of public buildings, and the claim of the plaintiff is that the power to appoint the janitor of such buildings was thus vested in that department, and that his appointment was, therefore, valid. It was so held by this court in the case of Kennedy v. The Mayor, etc. ( 79 N.Y. 361), and so much may now be regarded as settled. It was also held in that case that the appropriation by the board of apportionment was in form sufficient to authorize the payment of the plaintiff's salary except for the condition attached to it, which is above set out, and that such condition could be lawfully attached.
Kennedy in that case was in the same position as the plaintiff in this, but the adverse claimant to the salary of janitor there was not made a party, and hence the judgment there was reversed on that ground, the court holding that the adverse claimant should be made a party to the action so that a judgment rendered therein should bind him and protect the city against his claim and thus comply with the condition attached to the appropriation. So we must take it as decided that this is a proper case for impleading Cummisky as an adverse claimant with the city.
But little, therefore, remains to be determined now. Cummisky did not hold a lawful appointment of janitor. There was no law which authorized the justice of the civil court to appoint him. By section 65 of chapter 344 of the Laws of 1857, it is provided that "the corporation of the city of New York shall furnish, at the expense of that city, all necessary attendants, rooms, furniture, blanks, stationery and fuel for these courts," meaning the District Courts of the city of New York. That is a power to be exercised by the corporation, and the provision confers no power upon the justices of these courts. But March 15, 1870, the common council adopted the following resolution: " Resolved, That the justices assigned to each of the police courts of this city and the justices of the several district civil courts be and they are hereby authorized and empowered to appoint a janitor for each of said police and civil courts at an annual salary of $1,500 each, payable monthly." Cummisky is supposed to have been appointed under this resolution.
A janitor is understood to be a person employed to take charge of rooms or buildings, to see that they are kept clean and in order, to lock and unlock them, and generally to care for them.
A janitor, as distinguished from attendants, the common council had no authority to furnish for these courts. By the city charter of 1857 (chapter 446, section 23), an act later than the act chapter 344, above referred to, the care of public buildings was conferred upon the street department, and such care has since been in that department and its successor, the department of public works. Therefore, certainly since the act chapter 446, the common council could not appoint and could not delegate the power to appoint a janitor to take charge of any of the public buildings.
But it is said that the appropriation was to pay, not janitors of the court buildings, but court janitors, and that Cummisky was appointed the court janitor for the sixth district civil court. We do not think this a fair construction of the appropriation. It was to pay janitors in the several courts mentioned. The board of apportionment was willing to recognize but one janitor for each court, and it found two persons claiming to act as janitor, one under appointment of the commissioner of public works and the other under appointment by the justice of the district civil court, and it meant the appropriation for the one of the two who was legally appointed and who should be adjudged to have been so appointed.
We cannot recognize any distinction between a janitor of the court and a janitor of the building in which the court is held. Both must be construed to mean the same thing. A janitor of the court, as distinguished from an attendant upon the court, must be a person discharging the same duties as a janitor of the court building. If by janitor of the court is meant simply an attendant upon the court, then such janitor is provided for in an item of appropriation made by the board of apportionment "for salaries of clerks, stenographers, interpreters and attendants." We are, therefore, of opinion that there was but one janitor who could legally serve in the sixth district civil court building and that he was the plaintiff, and that he alone is entitled to pay out of the appropriation above referred to.
We conclude, therefore, that the judgment in this case should be affirmed, with costs.
The views here expressed probably determine the cases of Golden, Kennedy and O'Brien, so far as concerns the merits of those cases. But the counsel for the corporation claims that those cases are not properly before us and he did not argue them, and no one appeared for the co-defendants with the city in those cases. We do not understand the precise position of those cases before us. We have no papers showing that they are regularly here. We do not, therefore, decide them.
All concur.
Judgment affirmed.