Temple v. Brooks

Smith, P. J.: Plaintiff was a general stenographer of the Assembly in the year 1911, appointed pursuant to section 1 of the Legislative Law (Consol. Laws, chap. 32; Laws of 1909, chap. 31), which provides that the clerk of the Assembly may appoint ten general stenographers. Defendant was in that year a member of Assembly from the city of New York. Plaintiff has recovered upon a contract claimed to have been made between herself and the defendant to pay to her the sum of $100, in consideration that she would do his stenographic work while in attendance at the session of the Legislature. This judgment has been approved by the County Court of Albany county, and from such judgment of approval this appeal has been taken. It is first claimed that the evidence does not sustain the conclusion reached that such contract was made. The defendant’s denial is explicit that he agreed to pay anything therefor. It does not appear to have been the custom for members of the Assembly to make such contracts, and the plaintiff swore that she had no other similar contract with any member of the Assembly. But the witnesses were before the trial court; their testimony squarely conflicts, and with the determination of the trial court upon this question of fact we are of opinion that the County Court properly refused to interfere. The defendant further contends that under the law the plaintiff was not authorized to charge any sum in excess of the per [663] diem of three dollars allowed under section .10 of the Legislative Law (as amd. by Laws of 1911, chap. 45). Under such section it is provided, “ The pay of the officers or the employees who receive by this chapter a per diem compensation shall commence at the date of the appointment, and no person or employee shall receive any additional compensation during the term of service for which he shall be appointed.” This statute, however, refers to additional compensation from the State. It clearly does not prevent such employee from making a contract with an outsider for services which will not interfere with her regular official work, nor even with the member of the Assembly for services which are not included within the duties of her employment as general stenographer. Again, it is claimed that such a contract is against public policy. With this contention I am not in sympathy. If by such contract the general stenographer be induced to neglect her official work the remedy is with the clerk of the Assembly, who may discharge her, and the evils which might result from such a contract with a member of the Assembly, if such contract be otherwise valid, are, in my judgment, imaginary rather than real. The plaintiff’s difficulty, however, lies in the fact that the services which were rendered to the defendant were services required in the performance of her duties as general stenographer of the Assembly, and with a duty to perform such services for the compensation provided by law any agreement made for further compensation is without consideration and unenforcible. If this be true, it is unnecessary to consider the effect of subdivision 2 of section 67 of Public Officers Law (Consol. Laws, chap. 47; Laws of 1909, chap. 51), because if the contract be without consideration it is equally unenforcible as though against a positive statute. The contention of the plaintiff is that her duties were simply to act in legislative matters, or matters pertaining to the duties of the defendant as a member of Assembly. If such be the law, then without a contract every member of Assembly for whom a personal letter is written by a genera] stenographer at his request, is liable to an action upon a quantum, meruit for the services rendered, and every public [664] officer to whom is assigned by law a private stenographer would be compelled to pay extra compensation for every letter written at his request that cannot be related to his official duties. This would be a startling proposition to members of Assembly and all public officers, as well as to the public itself. The regular Assembly stenographer, hired to report the minutes of the Assembly, probably would not be expected to write either official letters or private letters for the individual members. The ten general stenographers appointed under the law are for the express purpose of providing stenographers for the individual members, who shall act pro tanto as'their private stenographers while they are in attendance upon the legislative session. Members of the Legislature are usually in Albany from Monday night until Thursday. While there many matters require their attention and correspondence, both public and private. If they were required to write out all letters that did not relate to their duties as legislators much of their time would be consumed which should properly be devoted to those duties. It seems clear to me that the duty of these general stenographers, under their contract with the State, is not merely to write official letters, but to write any letter, official or private, that a member of the Assembly may have occasion to write while away from his home and in attendance at the legislative session. If such be the plaintiff’s duty, then her agreement to act as stenographer for the defendant for the sum of $100 was without consideration. (Callagan v. Hallett, 1 Caines, 104; Hatch v. Mann, 15 Wend. 44.) It is further contended that this work was done nights and upon plaintiff’s own machine, and sometimes at the defendant’s apartments. The contract did not call for work overtime or at plaintiff’s home or upon her machine. If during regular hours she was busy with other members, so that she chose to do this work out of business hours, it would seem as though the other members whose work she was doing should also contribute to compensate plaintiff. The fact remains that the work done was wholly included within her duties as general stenographer of the Assembly, and the fact that in doing part of the work she worked overtime and at her room does not entitle her to charge extra compensation. (See [665] Hatch v. Mann, supra; McCarthy v. Bonynge, 12 Daly, 356; affd. on opinion below, 101 N. Y. 668; Carpenter v. Taylor, 164 id. 171; Bloodgood v. Wuest, 69 App. Div. 356.) It follows that the judgment of the County Court and of the City Court should be-reversed and a new trial granted in City Court, with costs to abide the event. All concurred, except Lyon and Howard, JJ., dissenting, the latter in opinion.