Opinion
May, 1911.
Archibald R. Watson, Corporation Counsel (Elliot S. Benedict, of counsel), for motion.
John W. Browne (John W. Browne, Herbert C. Smyth and Frederic C. Scofield, of counsel), for plaintiff, opposed.
Luce Davis (Robert L. Luce, of counsel), for John R. Voorhis.
If the two motions heretofore made were correctly decided, this motion, in so far as it seeks to bring in Mr. Voorhis as a party defendant, ought to be denied for the same reasons which led to the denial of the earlier motions, and which were clearly expressed in the opinion of Mr. Justice Page on the first motion. The city now insists, however, that the stipulation entered into between the plaintiff and Voorhis amounted to an equitable assignment by the former of the salary of the office for a certain period, and that the plaintiff seeks to recover the salary of that office for the period covered by that assignment. As this point was not expressly adverted to in the former opinions, and as counsel for the city seems unduly alarmed at the possibilities of this construction of the stipulation, it seems proper to discuss the question briefly, although it is to be noted that no suggestion of any such claim is to be found in Mr. Voorhis' complaint, and the possibility of such a construction of the stipulation seems to have originated in the minds of counsel for the city. Before taking up that point, however, I may say that there appears to be a conclusive objection to the granting of this branch of the application, for the reason that the only authority for making an order of this character is to be found in the statutory provisions contained in section 820 of the Code of Civil Procedure, which authorize an order of interpleader only in an action upon a contract or in certain other actions not now in point. As a public office is a public trust, in which neither the right to the office nor to its prospective emoluments is at all a matter of contract (Smith v. Mayor, etc., 37 N.Y. 518; Long v. Mayor, etc., 81 id. 425), it seems clear that the right of the plaintiff to recover in the present case cannot properly be described as an action to recover upon a contract, even though the period for which a recovery is sought has passed. It is an action in its nature quasi ex contractu, but not an action "upon a contract," since there was never any contract between the parties, nor were any services actually rendered by the plaintiff during the period covered by the action. In regard to the so-called assignment (assuming that the stipulation can be properly construed as an equitable assignment) it may be said at the outset that it is quite improbable that an assignment of the salary of a public office by one who had been ousted therefrom, and made while the office was in the adverse possession of a rival claimant thereto, could be regarded otherwise than as against public policy and, therefore, void. Passing that point, however, it is to be noted that the so-called assignment was made on May 4, 1909, and purported to relate both to the unpaid salary of the office for the six months previous and to the salary to accrue thereafter and pending the plaintiff's reinstatement. So far as it related to such future salary it was unquestionably void. Bliss v. Lawrence, 58 N.Y. 442; Bowery National Bank v. Wilson, 122 id. 478. As to the salary for the six months preceding the date of the assignment, while it was agreed that the plaintiff would make no objection to its payment by the city to Voorhis, the plaintiff, nevertheless, advanced to Voorhis the sum of $2,500, the amount of the salary for those six months, and Voorhis expressly agreed to repay the $2,500 so advanced as soon as he should collect it from the city. If, therefore, Voorhis were to be permitted to recover this six months' salary upon the theory of an equitable assignment, he would be bound by the terms of the same instrument immediately to pay it over to the plaintiff. It would, therefore, avoid a circuity of actions to allow the plaintiff to recover this money in this action, and if Voorhis shall urge the instrument in his action as an equitable assignment in his favor it will be a sufficient defense to show that the money has been paid to this plaintiff, to whom Voorhis was himself bound to pay it in case he should recover it. The motion in so far as it seeks to join Voorhis as a party defendant is, therefore, denied. As to the application to open the city's default, it appears from the plaintiff's affidavit that he waives all the claims set up in the other partial defenses except that set up in the fifth partial defense. No new matter, however, is alleged in the last named defense, as it appears on the face of the complaint that the plaintiff's claim was only presented to the comptroller on September 14, 1910. There is, therefore, no sufficient reason shown for opening the default, and the motion for that relief will also be denied upon condition that in the judgment to be entered the plaintiff will make the various deductions specified in his affidavit. If he takes a greater judgment than his complaint on its face entitles him to in respect of interest, the matter can be corrected upon a subsequent application to the court. I express no opinion as to what he is entitled to by way of interest. Motion denied, with ten dollars costs, upon the conditions stated. Settle order on notice.
Motion denied.