Opinion
February, 1905.
George H.D. Foster, for appellant.
John J. Delany, corporation counsel (I. Townsend Burden, Jr., of counsel, for respondent.
The position of teacher of gymnastics, which plaintiff's assignor held at the time of his appointment as attendance officer, made him a mere employee of the board of education, and not an officer of the city (Steinson v. Board of Education, 165 N.Y. 431), and herein the case at bar differs from McAdam v. Mayor, 36 Hun, 340, and Fitch v. Mayor, 40 id. 512. McAdam was a clerk of a bureau in the finance department and, therefore, directly within the language of section 59 of the Consolidation Act, and in the Fitch case the learned justice writing the opinion is at much pains to demonstrate that the plaintiff was an officer and not merely an employee. If the plaintiff did not hold an office as teacher of gymnastics he did not fall within the prohibition of section 1549 of the Charter, which provides that "No person shall hold two city or county offices, except as expressly provided in this act." For a like reason he is not one of those persons, who, by section 1533 of the Charter are forbidden to become interested in the performance of a contract, the expense, price, or consideration of which is payable from the city treasury, and, if he were, such a contract is not by the terms of the Charter made absolutely void, but only "voidable at the option of the Comptroller" (Matter of Clamp, 33 Misc. 250), who in the present case is not shown to have exercised such option. It is expressly stipulated that the duties and hours of the employment in the two positions do not conflict. No question arises as to the assignability of the claim because it is expressly stipulated that the defendant's sole reason for withholding payment is the belief that the employment is prohibited by statute.
The judgment must be reversed, with costs, and as all the facts are stipulated there should be judgment absolute in favor of plaintiff, with costs.
Present: SCOTT, GIEGERICH and McCALL, JJ.
Judgment reversed, and as all facts are stipulated there should be judgment absolute in favor of plaintiff, with costs.