The People and Taylor a. The Mayor, &c., of New York. applies to conveyances by the People of the State, or by public officers duly authorized. Such conveyances are not within the reason of the common-law rule or of the statute; and strictly, there can be no adverse possession as against the People-the People of the State cannot be disseized. (Jackson a. Gumaer, 2 Cow., 552; Allen a. Hoyt, Kirby's R., 221; Barney a. Cutler, 1 Root's R., 489, 491; La Frombois a. Jackson, 8 Cow., 589.) It follows, that the lease to Taylor and Brennan was valid, and gave them a right of entry, although the premises at the time were actually held and occupied under a title hostile to the title of the State; and having the right of entry, Taylor and Brennan could bring their action to recover the possession of the same, and the rents and profits since the execution of the lease as damages, &c. The complaint contains this cause of action on the part of Taylor and Brennan alone, against the defendants, the tenants in the actual occupation of the premises, alone; but this is sufficient to save the complaint, on this joint demurrer, by the city corporation and the other defendants. The plaintiffs must therefore have judgment on the demurrer, with liberty to the defendants, or such of them as have not answered, to answer in twenty days on payment of costs. In arriving at this conclusion, I have assumed that it sufficiently appears that the commissioners of the land-office were authorized to execute the lease to Taylor and Brennan. By Laws of 1819 (p. 300, § 3), the commissioners of the landoffice may lease, for a term not exceeding one year, any lands. belonging to the State, having improvements on them. It is not alleged in the complaint that the premises leased to Taylor and Brennan had improvements on them; but it is alleged that the lease was duly executed by the commissioners under the authority by law vested in them, and as public officers are to be presumed to do their duty, and to act within the powers given them by law, unless the contrary appears. I think it sufficiently appears that the commissioners had power to execute the lease to Taylor and Brennan. Green a. The Mayor, &c, of the City of New York. GREEN a. THE MAYOR, &c., OF THE CITY OF New York Common Pleas; General Term, December, 1858. ACTION AGAINST MUNICIPAL CORPORATION.-SALARIES.-DUTY AND POWER OF TAXATION. An action lies against the Corporation of the city of New York to compel them to pay an expense incurred pursuant to statute-e. g., the salary of a districtcourt justice-although they have no fund appropriated by law to that purpose, if they have funds, or means of raising funds, appropriated generally to such expenses as they may be put to by law." The provisions of the charters of 1830, 1849, and 1857, restricting the applica tion of the funds of the Corporation to the purposes for which appropriations have first been duly made, are designed merely to prevent usurpations, improvidences, or dishonesties in the officers of the Corporation; but cannot have the effect to defeat the operation of a subsequent statute increasing certain expenses of the Corporation. Appeal from judgment of a district court. This action was brought by the plaintiff, who was a justice of one of the district courts in the city of New York, to recover his salary as such officer. In a former action brought in the New York Common Pleas upon the same facts the defendants had answered, and the plaintiff's demurrer to the answer had been overruled. (See the proceedings reported 5 Ante, 503.) In the present action, which was brought in a district court, the plaintiff had judgment, from which the defendants now appealed. A. R. Lawrence, jr., for the appellants.-I. The facts set forth in the answer constitute a perfect defence. (1 Laws of 1857, 707.) 1. The respondents are the creatures of statute, and can only act in the manner prescribed thereby. (Boon a. City of Utica, 2 Barb., 104; Head a. Providence Insurance Co., 2 Cranch, 127; Dartmouth College a. Woodward, 4 Wheat., 636; Bank of United States a. Dandridge, 12 Ib., 64; Bank of Augusta a. Earl, 13 Pet., 387; Hodges a. City of Buffalo, 2 Den., 110; Homersham a. Wolverhampton Waterworks Co., 4 Eng. L. & Eq. R., 426; The Farmers' Loan & Trust Co. a. Carroll, Green a The Mayor, &c., of the City of New York. 5 Barb., 613.) 2. The charter of 1830 (§ 19; Davies' Laws, 202), which was in force until May 1, 1857, prohibited the respondents from borrowing any money, except in anticipation of their annual revenue, unless authorized by a special act; and the charter of 1857 (1 Laws of 1857, 885, § 33), which took effect on the first day of May, 1857, contains the same prohibition. 3. The tax act of 1857 only authorized the supervisors of the county of New York to raise an amount of money sufficient to pay the salaries of officers, payable out of the city treasury, at the rates allowed by law at that time. (1 Laws of 1857, 159.) And section 2 of that act prohibits the application of the sums therein authorized to be raised, to any other objects or purposes than those for which the supervisors are empowered to raise the same. Clearly, under this act, neither the respondents nor the supervisors can raise any money to pay the appellant the increase in his salary demanded in the complaint. 4. The act of April 13th, 1857 (1 Laws of 1857, 725, § 68), gives no power to the respondents by loan, or to the supervisors by tax, to raise any amount to meet the increase in the salaries of the justices of the district courts made by that act; and no other acts authorize such loan or tax; so that the Legislature provided no means to enable the respondents to meet the same. 5. The whole revenue of the respondents, derived from other sources than that of taxation, is pledged by law for the permanent debt of the respondents. (Davies' Laws, 891.) 6. There is no appropriation, nor is there any money in their treasury out of which they can pay the appellant the increase in his salary. The charters of 1830-1849 provide that no money shall be drawn from the treasury until it has been duly appropriated to the purpose for which it is drawn. (Davies' Laws, 202, § 18; 205-207, §§ 7-19.) And these provisions are continued in force by the charter of 1857. (1 Laws of 1857, 884, § 31.) II. A payment of the respondent's demand out of any of the moneys authorized to be raised by the supervisors by the act of March 5, 1857, would subject the officers making the same to the penalties imposed by section 40 of the charter of 1857. (1 Laws of 1857, 888.) III. The inability of the appellants to pay the respondent has not arisen from any neglect of duty on their part, or on that of their officers. Green a. The Mayor, &c., of the City of New York. IV. The Legislature having neglected to provide the appellants with means to pay the increase in the salary of the appellant, their property cannot now be taken under execution for the satisfaction of such claim. Wessell S. Smith, for the respondent.-I. It is admitted that the respondent, at the time of the commencement of this action, was a justice of a district court; that his salary as such was at the rate of $2000 per year up to April 13, 1857, when it was increased by an act of the Legislature to $3000 per year. This salary is made payable on the first day of each and every month out of the city treasury, and took effect immediately. (1 Laws, 1857, 725, § 68.) It follows that the respondent was entitled to the salary provided by law, viz., at the rate of $2000 per year up to 13th April, 1857, and after that at the rate of $3000 per year, payable monthly, as demanded in the complaint; and being thus entitled, he has a remedy by action if payment is refused, and no other. (Lynch a. Mayor, 25 Wend, 680, and cases cited.) II. That the Legislature had the authority to pass this act increasing the salaries of these justices, and making the same payable out of the city treasury, is not disputed. (People a. Warner, 7 Hill, 81, 82; S. C., in error, 2 Den., 272, 281; Conner a. Mayor, 1 Seld., 285, 296.) III. But admitting that the comptroller made the estimate; that the Common Council passed the ordinances and resolution, and the Legislature passed the tax-bill, as stated in the answer; then we say, 1. We are to be governed by the act of the Legislature alone, and have a right to refer to it on this appeal as to what was intended, without regard to averments in the answer as to its construction, and for the obvious reason, 2. That neither the estimate of the comptroller nor the ordinance of the Common Council are binding on the Legislature; for the Common Council may alter the estimate of the comptroller, as has been done recently, and the Legislature may alter the estimate of the Common Council, or refuse to pass them entirely. 3. It follows that, as the act of the Legislature was binding, we cannot go behind it to see upon what basis the estimates were made. IV. It appears upon the face of the answer that it is not true that no appropriation has been made out of which the claim of the appellant could be paid. 1. There is the appropriation of Green a. The Mayor, &c., of the City of New York. $412,500, which is general, to pay salaries payable from the city treasury, without any reference to the estimates of the comptroller, and it is not pretended that this sum was exhausted; until that was done, this allegation forms no defence. (Ordinances, 1856; 1 Laws, 1857, 159.) 2. Then there are the items. of county and city contingencies, $80,000, which were intended to apply to just such a case as the present. (Ib.; Sun Mutual Insurance Company a. Mayor, &c., 5 Sandf., 10, 14.) 3. Then comes the provision, that in addition to the items mentioned in the ordinance, "And for such other expenses as the mayor, aldermen, &c., may be put to by law." (Ib.) 4. It therefore appears that the necessary appropriation has been made: it is virtually admitted it has been received, and there is nothing to show but that the money is in the treasury now; certainly there is no allegation that it has been exhausted. V. The allegation that the defendants are not authorized to raise the same by loan, is equally unfounded. 1. They are authorized to raise the same by loan in anticipation of revenue, without permission of the Legislature. (Laws of 1830, 128, § 18, 19; 1857, 884, § 31-33.) 2. There is nothing in the answer to show that the defendants had no revenue, and that they could not make a loan in anticipation thereof; on the contrary, it appears that they had had revenue. And we instance in addition, fees, &c., received from these courts. (Webster's Dict.; Wharton's Law Lex.; Bouvier's Law Dict., Tit. Revenue.) VI. They had also authority to raise it by tax under the act of 1857, as above shown. (1 Laws of 1857, 157.) VII. The Legislature, by the act reorganizing these courts and giving the increase of salary to the judges (as they had a perfect right to do), gave the right to the defendants, and imposed on them the duty to provide the necessary means for the payment thereof. (Stief a. Hart, 1 Comst., 20, 30; 1 Kent's Com., 5 ed., 464.) 1. They had the right to raise this money either by loan or tax, as above shown. 2. The act organizing these courts removes the restriction on defendants, if any was imposed. (Laws of 1857, 707, 729, §§ 81, 82.) 3. The Legislature having imposed upon the defendants the duty of paying this increased salary, they gave them all the authority necessary for the performance of the same. (Same cases.) VIII. But admitting the facts stated in the answer, it forms no |