Frederick Law Olmsted SUBJECT FILE Parks New York, N.Y. Central Park, Salary Lawsuit 1875-77 [[shorthand]] UD[*IV - N.Y. CP.*] Papers in relation to suit against City of N.Y. for salary withheld for June July & August 1876 on claim that acceptance of office of State Survey Commissioner vacated position as Ad. Arch. of Parks. Dec. in favor of F.L.O. [*Interesting point in Judge's decision for FLO's claims that dignity of position does not affect the fact that FLO not an official*] [*Part used CP ch. VI*][*Copy of letter from Hon. Wm. Dorsheimer.*] [*6*] [*?TR*] 209 W. 46 ST. NEW YORK. Albany July 20th 1875 My dear Olmsted I do not think there is any ground for the opinion suggested by you. You are about to give your counsel to the New Capitol Commissioners, as you might be summoned into court as an expert. Such employment cannot constitute an office - if it did, the New Capitol Commissioners would not have power to employ you, for they have no power to create an office. The office meant by the Sec of the Charter to which you refer is an office created by law as indeed every office must be. We, that is the New Capitol Commissioners, wish for advice and instruction as to our duties and we ask you to give us such advice, just as the Governor might ask a lawyer foradvice upon a question of law arising in the performance of his duties as Governor. There can be no doubt about this matter. Very truly, Your friend William Dorsheimer 209 W. 46 ST. NEW YORK. Albany, 16 July, 1876 My Dear Mr. Prichard; I expect to return to New York tomorrow but may not be able to come to Wall Street before Wednesday afternoon. Will you, therefore, please take whatever course you think best in my matters and if you require aadvice upon a question of law arising in the performance of his duties as Governor. There can be no doubt about this matter. Very truly Your friend William Dorsheimer Signature or affidavit from me send to my house 209 W. 46th St. Yours very truly Fred Law Olmsted.[*F. L. Olmsted Rec'd 17 July, 1876*]21st July 1876. W.M Prichard; Esqr. My Dear Sir; I sent my resignation to the Governor as soon as I received your advice to do so - last Tuesday. The Park Board failed to meet this week. A meeting is called for next Wednesday when Mr Martin promises me that a resolution shall be passed as you haveadvised. Please take such course as you think best to reach as soon as possible a decision as to whether I am an officer of the city or not. Yours respy Fred Law Olmsted.F.L. Olmsted Recd 22 July, 1876DEPARTMENT OF PUBLIC PARKS, 36 UNION SQUARE. OFFICE OF DESIGN AND SUPERINTENDENCE, NEW YORK. 29 July 1876 W. M. Pritchard Esq Sir; I am directed by the President to inform you that there was no meeting of the Board yesterday but that there will be on Wednesday next; that Mr. Stebbins is against Mr O. on the subject you are engaged in and that it will be well for you to see Mr. Wetmore that he may understand the questions before the meeting Respectfully, Howard A. Martin Ch. Clk. D&SRe Olmsted H.A. Martin 29 July, 1876Department of Public Parks, 36 Union Square, (East) Whereas, On 31st May, Mr. Fred. Law Olmsted, the Landscape Architect of this Department, accepted and entered upon an office tendered him by the State, under Chapter 193 of the Laws of 1876, without advice as to the effect it might have on this said position as Landscape Architect in this Department, under Section 114 of the Charter of 1873, And whereas, The Counsel to the Corporation has given his opinion that it is doubtful whether Mr. Olmsted's acceptance of said State office did not vacate his position as Landscape Architect of this Department, and Mr. Olmsted has thereupon resigned the office which he held from the State. Resolved, That Mr. Frederick Law Olmsted be, and he hereby, is reinstated and continued Landscape Architect of this Department from this date, at the salary of six thousand dollars per annum. And whereas, Mr. Olmsted has, during the whole period from 31st May, to the present time, rendered to this Department, and this Department has received from him, without interruption, the same services as were heretofore rendered by him as Landscape Architect, therefore, it is further Resolved, That allowance and payment be made to him for his services to the Department form 31st May to the present date, at the rate of six thousand dollars per annum. Adopted by the Board of Commissioners of the Dept. of Public Parks August 4th 1876. Wm. Irwin Secy, D.P.P.F.L. Olmstead 5 Aug. 1876 209 W. 46 St New York. 5th Aug. 1876 My Dear Sir; Be so good as to send me by bearer or if more convenient, bring with you, when you come the copy you have of the affidavit to which the Comptroller wishes me to sign. Yours truly Fred Law Olmsted Pritchard F.L. Olmsted 5 Aug. 1876Concord, Mass. August 18, 1876 Dear Mr Olmsted, I have your's of yesterday. I have no wish personally as to the conduct of the remaining part of your claim against the City except that it should result in your collecting it — I think there is a difficulty about it — & that Mr Green will resist it persistently - But Mr Martin can carry it on for you as well as anybody - and as he feels interest enough in the questions involved to do so without expense to you I see no sufficient reason why you should refuse. I have written to Mr Shaw that you will probably call on him or send to him for the papers which he has -- I am Yours Truly W: W. PrichardThomas Allison John C. Shaw. Oscar F. Shaw. Sheldon B. Shaw Law Office of Allison & Shaw 78 Nassau St. New York Aug 19th 1876 Frederick Law Olmstead Dear Sir. Mr Pritchard before leaving town asked me to look after your matter in connection with the City - I have a letter from him during the week - advising me of the fact that the Comptroller has paid you for the month of May, deducting one day, the 31st Will you please inform me when & where I can see in regard to the remaining questions. Yours John C. Shaw Frederick L. Olmsted, Esq to Prichard Choate & Smith Dr 1876, October To numerous consultations, advice and services during several months past in respect to your claim against the City for Salary in Dept Public Parks $50. Received Payment 7 Nov. 1877 Prichard Choate & Smith F.L. Olmsted Esq Annexed hereto please find statement of your matter obtained by me from Mr. Lane, your attorney [?] Y tuly Geo. C. Coffin Nov. 16/76 No. 1. Will be on calendar for Superior Court in December term 1 day in [Aug.] May June & July No. 2 For month of August 1876 Time to answer 4 hours 27 Nov 1876 No 3. For month of September 1876 Notice to Comptroller send 20 Oct. 1876. Time up for Comptroller to pay 4 hours 20 Nov. No 4. For month of October 1876, Notice to Comptroller send 6 Nov. 1876. Time up for Comptroller to pay 4 hours 6 Dec. 1876.City of New York. Department of Public Parks. 36 Union Square (East). Superior Ct Olmsted v The Mayor March 2 1877 F L Olmsted Esq Dear Sir I wish to know 1st the exact date of your resignation as Com’r of the State Survey 2nd. The exact upon which you rec'd notice of your appointment as such Com’r As early an answer as possible would greatly oblige Rspy G. E. Coffin Olmsted v. Mayor 2 cases Law Office of Smith E. Lane, 145 Broadway, New-York, 9 May 1877. Box 854, Post Office My dear Sir: Mr. Vanderpoel's points in both cases will be printed by Friday morning, and the argument will be heard at General Term on that day or the Monday following. Mr. Vanderpoel writes me that he will be ready when the causes are reached. I will send you copies of the Points when printed. When the last bill for printing is paid I shall have disbursed about one hundred dollars in the two suits. Can you make it convenient to send me a cheque for $100. to cover expenses? I will account to you for it hereafter. Truly yours, S. Lane Frederick Law Olmsted EsqSuperior Court of the City of New York Olmsted vs. The Mayor &c. Action no. 1. General Term May 1877 Before Sedgwick and Speir J.J. This case comes up on plaintiff's motion that this Court direct a judgment to be entered upon verdict rendered in favor of the plaintiff subject to the opinion of the General Term - The plaintiff sued to recover the salary alleged to be due him as a Landscape Architect of the Department of Public Parks from the 31st day of May 1876 to the 31st of July then next inclusive. The plaintiff was by profession a landscape architect and had been employed many years in that capacityby the Department which had fixed his salary at the rate of $6000 per annum and he had been paid at that rate down to and including the 31st of May 1876. In the year 1876 Laws of 1876, page 196 ch. 193 the Legislature created a Board known as the "Commissioners of the State Survey" to hold office for one year and named the plaintiff one of the commissioners. Mr. Smith E. Lane for the plaintiff Mr. A. J. Vanderpoel of counsel Mr. William C. Whitney Corporation Counsel Mr. Francis Lynde Stetson of counsel Speir J. A preamble adopted by the Department of Parks on the 4th of August 1876 is set forth in the complaint reciting that the plaintiff had without advice as to the effect it might have on his position as Landscape Architect accepted the office ofCommissioner of the State Survey: that some doubt had been expressed on the point and that he had resigned the office and had without interruption performed the services on which he was employed and it was resolved that an allowance and payment be made to him for the services to the Department fro the 31st day of May 1876 at the rate of $6000. No salary or compensation was attached to the office of Commissioner of the State Survey. The plaintiff took the oath of office on the 31st of May 1876 and the Board was organized. The defense is based upon the following provision of the 114 Section of the Statute: " Any persons holding "office whether by election or appointment "who shall during his term of office "accept, hold or retain any other civil "office of honor, trust or envolvement "under the Government of the United "States (except Commissioners for the "taking of bail, or Register of any court) "or of the State (except the office of Notary "Public or Commissioner of Deeds or office "of the National Guard) or who shall "hold or accept any other office connected"with the government of the City of New York "or who shall accept a seat in the Legislature "shall be deemed thereby to have "vacated every office held by him under "the City government. No person shall "hold two City or County offices except as expressly provided in this act: nor "shall any officer render the City Government "hold or retain any office under "the County Government, except when "he holds such office ex officio by virtue "of an act of the Legislature and in such "case he shall draw no salary for such "ex officio office" Was the plaintiff a landscape architect in the Department of Public Parks an officer within the prohibition of the preceding section? An office has been defined to be a right to exercise a public function or employment and to take the fees and enrolments belonging to it. An officer is one who is lawfully invested with an office - Bacon's Abridgement Vol. 7. Title office and officer p 279 Ed. of 1860 - Bour Law Dic. The idea of an officer clearly embracesthe idea of tenure, duration, fees or enrolments and powers as well as that of duty. The nature of the power and the control over the officer appointed does not at all depend upon the source from which it emanates. The execution of the power and the control over the officer depends upon the authority of law and not upon the agent who is to administer it. The tenure of ancient common law offices, and the rules and principles by which they are governed have no application in this country. In England the tenure of office depends in a great measure upon ancient usage. Were there is no ancient usage which can apply to and govern the tenure of officers created by the constitution and laws. In such a case the tenure of the office is determine by the meaning of the statue. Every office under the Constitution implies an authority to exercise some portion of the sovereign power of the State either in making, executing, or administering the laws. In the section of the statue there is no ambiguity and there is noroom for construction or interpretation. The words are clear and explicit. "No person shall hold two City or County offices except as provided in this act: nor shall any officer under the City government hold or retain an office under the County government except when he holds such office ex officio by virtue of an act of the Legislature: and in such case he shall draw no salary for such ex officio office.: The distinction is plainly taken between a person acting as a servant or employé, who does not discharge independent duties but acts by direction of others and an officer empowered to act in the discharge of a duty, or trust, under obligations imposed by the sanctions and restraints of legal authority in official life. I can find nothing in all the sections of the charter which does not strictly limit the prohibition to persons included in the foregoing definition given by the elementary writers _ The plaintiff received no certificate of appointment, took no oath for the faithful performance of duties,had no term or tenure of office discharged no duties and exercised no powers depending directly upon the authority of law. He was simply the servant of the Commissioners of the Park and responsible only to them - His responsibility was limited to them and is in no way distinguishable from that of the carpenter and the mason who are employed to build the bridges, or erect the buildings designed by the architect. The nature and dignity of the duties confided to the employés by the Commissioners do not determine the character of the position. It is in no proper sense official according to any sense in which the term is used in the Statue above recited. The Justices of the Supreme Court of Maine 1822 gave an opinion as to whether certain duties which had been delegated by agents to be appointed by the Governor constituted the appointees officers. The case is reported in the appendix to the first Ed. of 3 Greenleaf's B. app. No. 2_ They say "There is a manifest difference between an office and an employment under the government. We apprehend that the term "office" implies a delegation of a portion of the sovereign power to and possession of it by the person filling the office and the exercise of such power within legal limits constitutes the correct discharge of the duties of such office." The question was directly put before the learned Judges for decision and they returned a sharply defined answer wholly disconnected with other matters and it seems to me to be conclusive. The Courts in this State are in accord with the foregoing opinion. The plaintiff must have judgment for the amount claimed in the Complaint with costs. See next page Case No. 2Same vs Same Action No. 2 The Court This case comes within the decision of the foregoing and must be controlled by the same principles of law The plaintiff is entitled to judgment for the amount of the verdict with costs.Olmsted -vs- The Mayor &c. Opinion Speir J. I concur J.S.Due service of within is hereby admitted. Dated New York. Superior Court of the City of New-York Frederick Law Olmsted Nos. 1 & 2 vs. The Mayor, Aldermen and Commonalty of the City of New-York Copy opinion by Shiev J. Smith E. Lane, Attorney for plaintiff 145 Broadway, New York Part used vol I Part II ch VI (Central Park) Suit for salary New York Pk. Dept. 1877Superior Court OF THE CITY OF NEW YORK. GENERAL TERM. FREDERICK LAW OLMSTED, Respondent, agst. THE MAYOR, ALDERMEN AND COMmonalty of the City of New York, Appellants. This action is brought for services for the month of August, 1876, the services being the same character and rendered under the same circumstances stated in the respondent's points in the first action, and comes before the General Term in the same way. The defendants concede a liability from the 4th of August, 1876, but claim that for the first four days in August they are not liable, not because the services were not performed by Mr. Olmsted, but simply upon the ground that the effect of taking the oath of office was to vacate his employment, and that he was not re- instated until the 4th day of August, 1876. The same argument is presented on behalf of plaintiff in this case as in the other case. A.J. Vanderpoel, Of Counsel. Smith E. Lane, Attorney for plaintiff. May, 1877.Superior Court OF THE CITY OF NEW YORK. GENERAL TERM. FREDERICK LAW OLMSTED, Respondent, agst. THE MAYOR, ALDERMEN AND COMmonalty of the City of New York, Appellants. Trial before Justice Freedman and a jury, on the 11th day of April, 1877, and verdict for $1,068.35 ordered for the plaintiff, subject to the opinion of the court at General Term. The action is brought to recover for services rendered by plaintiff to the Department of Public Parks, on the 31st day of May, 1876, down to and including the month of June and the month of July, 1876. The plaintiff's profession is that of a landscape archi-2 tect, and he has been employed in that capacity for many years by the Department of Public Parks of this city. The Department had fixed his compensation at the rate of $6,000 per annum, and he has been paid at that rate down to and including the 30th of May, 1876. In the year 1876 (Laws 1876, p. 196, chap. 193), the Legislature created a Board to be known as the "Commissioners of the State Survey," to hold office for one year, and named the plaintiff as one of the Commissioners No salary or compensation was attached to that office. On the 31st of May, 1876, the plaintiff, Olmsted, took the oath of office, and the Board was organized (p. 23). The plaintiff attended but one meeting of the Board, to wit : on the occasion when he took the oath of office, he having leave of absence from the Park Department (26) for that day. It was then suggested that there might be some doubt as to whether he, being an employé of the city, could accept the office of Commissioner of the State Survey; and on the 18th of July he formally resigned that office. During all of the time he performed services as Landscape Architect for the Department of Public Parks. The complaint (fol.9) contains a preamble and resolutions, adopted by the Department of Parks, on the 4th of August , 1876, which recite that Mr. Olmsted had, without advice as to the effect it might have on his position as Landscape Architect, accepted the office of Commissioner of State Survey; that some doubt had been expressed on the point, and that he had resigned the office, and had, without interruption, performed the services on which he was employed, and resolved that an allowance and payment be made to 3 him for his services to the Department, from the 31st day of May, at the rate of $6,000. The defense is based upon the provision contained in section 114 of the Charter of 1873 (Laws of 1873, ch. 335, p. 519), which is as follows : "Any person holding office, whether by election or appointment, who shall, during his term of office, accept, hold or retain any other civil office of honor, trust or emolument, under the Government of the United States (except commissioners for the taking of bail, or register of any court) or of the State (except the office of notary public or commissioner of deeds, or office of the national guard), or who shall hold or accept any other office connected with the government of the city of New York, or who shall accept a seat in the Legislature, shall be deemed thereby to have vacated every office held by him under the city government. No person shall hold two city or county offices, except as expressly provided in this act ; nor shall any officer under the city government hold or retain an office under the county government, except when he holds such office ex-officio, by virtue of an act of the Legislature ; and in such case he shall draw no salary for such ex-officio office." First Point. The plaintiff was not an officer within the prohibition of section 114. 1. He did not hold any officer under the charter. 2. He was an employé, or servant, of the Department of Public Parks, having no official relations whatever to the city government. 3. The charter throughout maintains this distinction between employés and officers. §§ 93, 94, 95. &c.4 4. He received no certificate of appointment under section 93. He took no oath under section 94. He had not term of office, but could be discharged at the pleasure of the department (§ 24). His duties do not concern the public. He exercised no power affecting the public. He was merely the servant of the Commissioners to advise them professionally. There was no analogy between the position occupied by him and that of an executive, administrative or judicial officer charged with official duties and responsibilities affecting the public. Holly v. The Mayor, &c. 59 N.Y., 166 170 5. Bacon's Abr. Tit. Offices. "It is said that the work officium principally implies a duty ; and that it is a rule that where one man hath to do with another's affairs against his will, and without his leave, that this is an office, and he who is in it is an officer. There is a difference between an office and an employment, every office being an employment - but there are employments which do not come under the denomination of offices." The term "employé" is more extensive than "clerk," or "officer." It signifies any one in place or having charge, or using a function, as well as one in office. Stone V. U. S., 3 Court of Claims R., 260. In Sullivan v. The Mayor, &c., 48 How. Pr., 1 8 held by Robinson, J., that a person who does not discharge independent duties, but acts by direction of others, is not an officer. In that case the plaintiff was a janitor of a District Court, and the court sustained an action for the plaintiff's 5 services distinctly on the ground that a janitor was not an officer but an employé. So the Court of Appeals in Sullivan v. The Mayor, &c., 53 N. Y., 652, held that the position of janitor in a District Court in said city is not an officer, the janitor is simply an employé or attendant of the court, and the Common Council are not prohibited by the provision referred to in the tax levy of 1869 from authorizing the courts to appoint such an attendant. In 1822, the Governor of Maine called upon the justices of the Supreme Court for their opinion as to whether certain duties which had been delegated by agents to be appointed by the Governor constituted the appointees officers. The judges in response say "There is a manifest difference between an office and an employment under the government. We apprehend that the term "office" implies a delegation of a portion of the sovereign power to and possession of it by the person filling the office, and the exercise of such power within legal limits constitutes the correct discharge of the duties of such office. The power thus delegated and possessed may be a portion belonging sometimes to one and sometimes to another ; still this is a legal power, which may be rightfully exercised, and in its effects it ill bind the rights of others and be subject to revision and correction only, according to the standing laws of the State. An employment merely has none of these distinguishing features. A public agent acts only on behalf of his principal, the public, whose sanction is generally considered as necessary to give the acts performed, the authority and power of a public act or law ; and if the act be such as not to require such subsequent sanction, still it is only a species of service performed under the public authority and for the public good, but not in the execution of any standing laws which are 6 considered as the rules of action and the guardians of rights. * * * An office being a grant and possession of a portion of the sovereign power it is highly proper that it should be guarded from abuse as far as possible; and to this end that every person holding an office should be under obligation of the oath. * * It appears, then, that every "office" in the constitutional meaning of the term, implies an authority to exercise some portion of the sovereign power, either in making, executing or administering the laws. 3 Greenleaf, R. 481. A similar question as to who was an "officer" arose in Pennsylvania in 1828, and it was determined that the selection of an editor of a newspaper to print the laws of the United States by the Secretary of State was not conferring an office, or appointment, or employment under the United States rendering it incompatible with the office of Alderman of Philadelphia. Commonwealth vs. Binns, 17 Serg. and Rawle, 219. Second Point. If plaintiff, as Landscape Architect, shall be deemed to be a city officer, and hence, by his acceptance on May 31st, 1876, of the office of a Commissioner of the State Survey, to have ceased to be such architect, he may still recover for his services rendered at the request of the Department of Parks for defendants' benefit, by virtue of the resolutions of August 4th, 1876, passed by the Commissioners of the Department. 7 1. They had a right to receive such services under the general powers conferred by sections 28 and 83 of the charter. 2. The resolutions of August 4th were a ratification of plaintiff's employment, and legally made so. The doctrine of ratification applies to municipal corporations. 1 Hoff., Laws, 330. Peterson vs. Mayor, 17 N. Y., 449. Brady vs. Mayor, 20 N. Y., 312. In the Matter of Doubleday vs. Supervisors of Broome County, 2 Cow., 533. Thompson vs. Mayor, 7 Robt., 543. Landgon vs. Castleton, 30 Vt., 285. 1 Dillon's Mun. Corp., §168, and cases in notes §§ 168, 169, 170, 171. 3. Here there is no illegal contract to content against. Nelson vs. The Mayor, 2 W. Dig., 313, is therefore in point : "Where the city has received "property there is, independent of contract, an "implied obligation to pay its value." 4. There remains but the question "what were plaintiff's services during the 31st of May, and June, and July, 1876, reasonably worth." This sum plaintiff should recover. The value of these services is not disputed. Third Point. The defense interposed cannot avail after the date of the resignation of plaintiff, viz., July 18th, 1876.8 1. Failure to fix his compensation was cured by the resolutions of August 4th, 1876, referred to in the complaint and admitted. There is no law which requires the pay of an employé to be fixed in advance. Fourth Point. The plaintiff should have judgment for the full amount claimed, as prayed for in the complaint. A. J. Vanderpoel, Of Counsel. Smith E. Lane, Attorney for Plaintiff. May, 1877.SUPERIOR COURT OF THE CITY OF NEW YORK ACTION No. 1.) FREDERICK LAW OLMSTED, vs. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK. Case at General Term. SMITH E. LANE, Attorney for Plaintiff. A. J. VANDERPOEL, Of Counsel. WM. C. WHITNEY, Counsel to the Corporation, Attorney for Defendants. NEW YORK: 1877.EVENING POST STEAM PRESSES, 208 Broadway, cor. Fulton St. N.Y. SUPERIOR COURT 1 OF THE CITY OF NEW YORK. FREDERICK LAW OLMSTED Plaintiff, against THE MAYOR, ALDERMEN, AND COMmonalty of the City of New York, Defendants. summons for money demand on contract. (Action No. 1.) 2 To the defendant: You are hereby summoned and required to answer to the complaint in this action, of which a copy is herewith served upon you, and to serve a copy of your answer to the said complaint on the subscriber, at his office No. 145 Broadway, in the City of New York, within twenty days after the service hereof, exclusive 3 of the day of such service; and if you fail to answer the said complaint within the time aforesaid, the plaintiff in this action will take judgment against you for the sum of sixteen dollars and ten cents, with interest2 Complaint. 4 from the 31st day of May, one thousand eight hundred and seventy-six, and for the further sum of five hundred dollars, with interest from the 30th day of June, 1876, and for the further sum of five hundred dollars, with interest from the 31st day of July, 1876, besides the costs of this action. Dated New York, October 2, 1876. SMITH E. LANE, Plaintiff's Attorney. --------- 5 SUPERIOR COURT OF THE CITY OF NEW YORK. FREDERICK LAW OLMSTED } Action No. 1. vs. Complaint. THE MAYOR, ALDERMEN, AND COMMONALTY of the City of New York. 6 The plaintiff above named, by Smith E. Lane, his attorney, complains of the defendant above named as follows: First.—That he defendant, the mayor, Aldermen, and Commonalty of the City of New York, is a municipal corporation duly incorporated by that name, and existing under the laws of the State of New York, and is by law made responsible for all the debts incurred by the Department of Public Parks. Second.—That the above named plaintiff has been continuously, for many years last past, and up to the Complaint. 3 present time, an employé of the said Department of 7 Public Parks as Landscape Architect, and has performed all the services required as such employé. Third.—That the pay of the above named plaintiff was fixed at the rate of six thousand dollars per annum during the term of his employment, and that his services were reasonably worth the said sum per annum. Fourth.—This plaintiff further shows, that on the 31st day of may, 1876, whilst performing his duties as employé as aforesaid, he accepted and entered upon 8 an office tendered to him by the State of New York, under Chapter 193 of the laws of 1876, without vacating his position as an employé of the Department of Public Parks. That said Department, being in doubt as to whether the plaintiff's acceptance of said State office did not vacate his position as landscape architect of said department, and it appearing that on the 18th day of July, 1876, he had resigned the office which he held from the State, did, at a meeting of the Commissioners of the Department of Public Parks, held on the 4th day of August, 1876, adopt the following preambles and resolutions: Whereas, On 31st May Mr. Frederick Law Olmsted, 9 the Landscape Architect of this department, accepted and entered upon an office tendered him by the State, under Chapter 193 of the Laws of 1876, without advice as to the effect it might have on his said position as landscape architect in this department, under Section 114 of the Charter of 1873; and, Whereas, The Counsel to the Corporation has given his opinion that it is doubtful whether Mr. Olmsted's acceptance of said State office did not vacate his position as landscape architect of this department, and Mr. Olmsted has thereupon resigned the office which he held from the State—4 Complaint. 10 Resolved, That Mr. Frederick Law Olmsted be, and he hereby is, reinstated and continued Landscape Architect of this department from this date, at the salary of six thousand dollars per annum. Whereas, Mr. Olmsted has, during the whole period from 31st May to the present time, rendered to this department, and this department has received from him, without interruption, the same services as were heretofore rendered by him as Landscape Architect; therefore, it is further— Resolved, That allowance and payment be made to him for his services to the department, from 31st May to the present date, at the rate of six thousand dollars per annum. 11 Fifth.—That on the 31st day of May, 1876, there was due and owing to the above named plaintiff, for a balance of one month's services as such employé, the sum of sixteen dollars and ten cents. On the 30th day of June, 1876, the further sum of five hundred dollars for one month's services. On the 31st day of July, 1876, the further sum of five hundred dollars for one month's services. Sixth.—That the above named plaintiff heretofore duly presented his said several claims for the several amounts of his said services to the Comptroller of the City of New York, and payment thereof was duly demanded. 12 Seventh.—That more than thirty days have elapsed in each case since said claims were so severally presented and payment demanded; but said Comptroller has wholly neglected to pay the same, or either of them, or any part thereof, nor has any part thereof been paid. Wherefore, plaintiff demands judgment against the defendant for the sum of sixteen dollars and ten cents, with interest thereon from the 31st day of May, 1876; for the further sum of five hundred dollars, with interest thereon from the 30th day of June, 1876, and for Answer. 5 the further sum of five hundred dollars, with interest 13 thereon from the 31st day of July, 1876, besides the costs and disbursements of this action, and that the trial be had in the County of New York. SMITH E. LANE, Plaintiff's Attorney. City and County of New York, ss: Frederick Law Olmsted, the above named plaintiff, being duly sworn, says that the foregoing complaint is true of his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true. 14 FREDERICK LAW OLMSTED. Sworn to before me this 2d } day of October, 1876, GEO. C. COFFIN, Notary Public N. Y. City and County. SUPERIOR COURT. FREDERICK LAW OLMSTED } Action No. 1, 15 vs. Answer. THE MAYOR, &C. Defendants answer the complaint herein as follows: First.—They deny any knowledge or information sufficient to form a belief as to each and every allegation in said complaint contained, not hereinafter specifically admitted or denied.6 Answer. 16 Second.—They admit the allegations contained in the first paragraph or subdivision of the complaint. They further admit that the salary of Landscape Architect of the Department of Public Parks was fixed at the rate of $6,000 per annum. They further admit that the preamble and resolution in the complaint recited, were adopted as alleged, at a meeting of the Commissioners of the Department of Public Parks, on the fourth of August, 1876. They further admit the allegations contained in the sixth and seventh paragraphs or subdivisions of the complaint, with reference to the presentation of the claims, upon which this action is founded, to the Comptroller for adjustment. 17 Third.—Defendants deny that the plaintiff has continuously held the position of Landscape Architect, of the Department of Public Parks, for many years last past, and up to the present time as in the complaint alleged. Fourth.—And they allege for a further and separate defence, that on or about the thirty-first day of May, 1876, the plaintiff accepted an office under the State Government of this State, and that by so doing, he vacated the office held by him of Landscape Architect, in the said Department of Public Parks. 18 Fifth.—They deny that the plaintiff is entitled to any salary as Landscape Architect as aforesaid, during the time that he held the office under the State Government. Wherefore, defendants demand that the complaint herein be dismissed, with costs. Wm. C. WHITNEY, Counsel to the Corporation. City and County of New York, ss: Abraham L. Earle, the Deputy Comptroller of the City of New York, and an officer of the defendants in Evidence. 7 the above entitled action, being duly sworn says : that 19 the foregoing answer is true to his knowledge, except as to the matters therein stated upon information and belief, and as to those matters he believes it to be true. ABRAHAM L. EARLE, Deputy Comptroller. Sworn to before me, this 25th } day of October, 1876, CHAS. P. MILLER, Commissioner of Deeds. SUPERIOR COURT 20 OF THE CITY OF NEW YORK. FREDERICK LAW OLMSTED } vs. Action No. 1. THE MAYOR, ALDERMEN & COMMONALTY Plaintiff's Case of the City of New York. The issues in this action came on for trial before the Hon. John J. Freedman, justice, and a jury, on the 21 11th day of April, 1877. SMITH E. LANE and AARON J. VANDERPOEL appearing for the plaintiff, and FRANCIS L. STETSON for the defendants. Mr. Vanderpoel opened the case and called on behalf of the plaintiff— Frederick Law Olmsted, who being duly sworn testified : 8 Plaintiff as witness. 22 M profession is that of a Landscape Architect ; I commenced my employment under the Central Park Commission in 1857, and have continued down to the present time, with an interruption during the war. During the year 1876 I was in that employment, at the rate of compensation of $6,000 per year, and have been paid for my services at that rate down to the 30th day of May 1876, inclusive ; I was not paid for the 31st day of may, or for June or July or August, 1876. Cross-examined by Mr. Stetson, defendant's counsel : Q. Did you ever take the oath of office provided by 23 the Constitution, upon assuming the duties of one of the Board of State Survey, under chapter 193 of the Laws of 1876? A. I did, on the 31st day of may, 1876, at noon of that day, at Albany ; I was in Albany the whole of that day, in connection with the business ; I gave up that appointment on the 18th July, 1876, I think ; I resigned. Redirect: Q. Stat the nature of the duties of Landscape Architect ? A. I design most of the work of the Park, and have 24 general supervision of those who are engaged in carrying it on, and a great variety of miscellaneous duties. Q. You took no oath of office as Landscape Architect ? A. No ; I never have taken an oath of office under the city ; I continued to discharge my duties all the time as advisory architect from the 31st may down during the whole of June, July and August, 1876, and I have done so continuously. It is admitted that on the 31st January, 1876, the Plaintiff as witness. 9 compensation of Landscape Architect was reduced from 25 $6,500 to $6,000 a year. Plaintiff's counsel reads from the minutes o the Department of public Parks, December 23d, 1873, the following : " The President then moved that the Board do now " take up and consider the matter of the reappointment " of employés of the department. Adopted. " Mr. Bissinger moved that Frederick Law Olmsted " be reappointed Landscape Architect at an annual " salary of $6,500." The President put the question whether the Board would agree to said motion, and it was determined in 26 the affirmative. Redirect : My recollection is that I attended but one meeting of the Board of State Survey, and that was the organizing meeting ; the rest of the time I was at work in the Department of public Parks ; I had leave of absence to attend that meeting at Albany from the President of the Board. Recross : I afterwards received notice of reappointment as 27 supervising landscape architect of the parks ; I think the date of that was the 4th August, 1876. Redirect : Q. Did you receive it in any other form than by a copy of the resolutions mentioned in the complaint ? A. No other form. These resolutions are found at folio 4 of the complaint. The following calculation was agreed upon. 10 Verdict. 28 Salary of May 31, 1876 . . . . . . . . . . . . . $16 66 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . $1 09 Salary month ending June 30, 1876 . . 500 00 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 25 30 Salary moth ending July 31, 1876 . . 500 00 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 25 30 Total principal . . . . . . . . . . . . . . . . . 1,016 66 Total interest . . . . . . . . . . . . . . . . . . 51 69 1,068,35 Mr. Stetson, defendant's counsel, moved the 29 to direct a verdict for the defendants. The court thereupon directed the jury to render a verdict for the plaintiff for the sum of $1,068.35, subject to the opinion of the court at General Term, and the jury rendered their verdict accordingly. Case settled, and it is hereby consented that the same, or a printed copy thereof may be filed. April 14, 1877. Wm. C. WHITNEY Counsel to the Corporation S.E. Lane, 30 Attorney for Plaintiff. So ordered, Jno. J. FREEDMAN, Justice, Superior Court. SUPERIOR COURT OF THE CITY OF NEW YORK (ACTION NO. 2.) FREDERICK LAW OLMSTED, vs. THE MAYOR, ALDERMAN AND COMMONALTY OF THE CITY OF NEW YORK. Case at General Term. SMITH E. LANE, Attorney for Plaintiff. A. J. VANDERPOEL, Of Counsel. WM. C. WITNEY, Counsel to the Corporation, Attorney for Defendants. NEW YORK : 1887EVENING POST STEAM PRESSES, 208 Broadway, cor. Fulton St., N.Y. Superior Court 1 OF THE CITY OF NEW YORK. FREDERICK LAW OLMSTEAD,} Plaintiff, } against THE MAYOR ,ALDERMEN AND Commonalty of the City of New York, Defendants. } Summons for a money demand on contract. (Action No. 2.) 2 To the defendant: You are hereby summoned and required to answer the complaint in this action, of which a copy is herewith served upon you, and to serve a copy of your answer to the said complaint on the subscriber, at his office, No. 145 Broadway, in the City of New York, 3 within twenty days after the service hereof, exclusive of the day of such service; and if you fail to answer the said complaint within the time aforesaid, the plaintiff in this action will take judgment against you for 2 Complaint. 4 the sum of five hundred dollars, with interest, from the 31st day of August, 1876, besides the costs of this action. Dated New York, October 20, 1876. SMITH E. LANE, Plaintiff's Attorney. SUPERIOR COURT 5 OF THE CITY OF NEW YORK. FREDERICK LAW OLMSTED vs, THE MAYOR, ALDERMEN, AND Commonalty of the City of New York. Action No. 2. Complaint. 6 The plaintiff above named, by Smith E. Lane, his attorney, complains of the defendant above named as follows: First. -- That the defendant, the Mayor, Aldermen, and Commonalty of the City of New York, is a municipal corporation duly incorporated by that name, and existing under the laws of the State of New York, and is by law made responsible for all the debts incurred by the Department of Public Parks. Second.-- That the above named plaintiff has been continuously, for many years last past, and up to the Complaint. 3 present time, an employe' of the said Department of 7 Public Parks as Landscape Architect, and has performed all the services required as such employe'. Third.-- That the pay of the above named plaintiff was fixed at the rate of six thousand dollars per annum during the term of his employment, and that his services were reasonably worth the said sum per annum. Fourth. -- This plaintiff further shows, that on the 31st day of May, 1876, whilst performing his duties as employe' as aforesaid, he accepted and entered upon an office tendered to him by the State of New York, 8 under Chapter 193 of the Laws of 1876, without vacating his position as an employe' of the Department of Public Parks. That said Department, being in doubt as to whether the plaintiff's acceptance of said State office did not vacate his position as landscape architect of said department, and it appearing that on the 18th day of July, 1876, he had resigned the office which he held from the State, did, at a meeting of the Commissioners of the Department of Public Parks, held on the 4th day of August, 1876, adopt the following preambles and resolutions: Whereas, On 31st May Mr. Frederick Law Olmsted, 9 the Landscape Architect of this department, accepted and entered upon an office tendered him by the State, under Chapter 193 of the Laws of 1876, without advice as to the effect it might have on his said position as landscape architect in this department, under Section 114 of the Charter of 1873; and, Whereas, The Counsel to the Corporation has given his opinion that it is doubtful whether Mr. Olmsted's acceptance of said State office did not vacate his position as landscape architect of this department, and Mr. Olmsted has thereupon resigned the office which he held from the State--4 Complaint. 10 Resolved, That Mr. Frederick Law Olmsted be, and he hereby is, reinstated and continued Landscape Architect of this department from this date, at the salary of six thousand dollars per annum. *Whereas, Mr. Olmsted has, during the whole period from 31st May to the present time, rendered to this department, and this department has received from him, without interruption, the same services as were heretofore rendered by him as Landscape Architect; therefore, it is further-- Resolved, That allowance and payment be made to him for his services to the department, from 31st May to the present date, at the rate of six thousand dollars per annum. 11 Fifth.--That on the 31st day of August, 1876, there was due and owing to the above named plaintiff, for one month's services as such employé, the sum of five hundred dollars. Sixth.--That the above named plaintiff heretofore on the 18th day of September, 1876, duly presented his said claim for the amount of his said services to the Comptroller of the City of New York, and payment thereof was duly demanded. Seventh.--That more than thirty days have elapsed since said claim was so presented and payment demanded; but said Comptroller has wholly neglected to 12 pay the same, or any part thereof, nor has any part thereof been paid. Wherefore, plaintiff demands judgement against the defendant for the sum of five hundred dollars, with interest thereon, from the 31st day of August, 1876, besides the cost and disbursements of this action. SMITH E. LANE, Plaintiff's Attorney. Answer. 5 City and County of New York, ss: 13 Frederick Law Olmsted, the above named plaintiff, being duly sworn, says that the foregoing complaint is true of his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true. FREDERICK LAW OLMSTED. Sworn to before me this 25th} day of October, 1876,} GEO. C. COFFIN, Notary Public N.Y.City and County 14 SUPERIOR COURT. FREDERICK LAW OLMSTED} Action No. 2 vs.} THE MAYOR, &c} Answer. Defendants answer the complaint herein as follows: 15 First.--They deny any knowledge or information sufficient to form a belief as to each and every allegation in said complaint contained, not hereinafter specifically admitted or denied. Second.--They admit that defendants are a municipal corporation as alleged in the first paragraph or subdivision of the complaint, and that the plaintiff has been for many years last past connected with the Department of Parks as Landscape Architect. They further admit that the salary plaintiff6 Answer. 16 as Landscape Architect as aforesaid, was fixed by law at the rate of $6,000 per annum. They admit that the claim upon which this action was founded was presented to the Comptroller more than thirty days prior to the commencement of this action, and that no part of said claim has been paid. And these defendants further answering, and for a further and separate defence to the complaint herein, allege that the resolutions in the complaint mentioned were passed on the 4th day of August, 1876; that from the fact that plaintiff had resigned the office tendered to him under Chapter 193 of the Laws of 1876, and by the terms of said resolutions plaintiff 17 was, on the 4th day of August, 1876, reinstated in the office of the Landscape Architect as aforesaid; and defendants admit that they are indebted to him for the salary at the rate of $6,000 per annum, from the 4th to the 31st day of August, 1876. Wherefore defendants demand that the complaint herein be dismissed, with costs. Wm. C. Whitney Counsel to the Corporation City and County of New York SS: Abraham L. Earle, the Deputy Comptroller of the City of New York, and an officer of the defendants in the above entitled action, being duly sworn says: that the foregoing answer is true to his knowledge, except as to the matters therein stated upon information and belief, and as to those matters he believes it to be true. Abraham L. Earle, Deputy Comptroller Sworn to before me, this 27th day of November, 1876, Chas. P. Miller, Commissioner of Deeds 7 Plaintiff as witness Superior Court Of the City of New York 19 Frederick Law Olmsted vs. The Mayor, Aldermen & Commonalty of the City of New York Action No. 2 Plaintiff's Case 20 The issues in this action came on for trial before the Hon. John J. Freedman, justice, and a jury on the 11th day of April, 1877. Smith E. Lane and Aaron J. Vanderpoel appearing for the plaintiff, and Francis L. Stetson for the defendants. Mr. Vanderpoel opened the case and called on behalf of the plaintiff -- Frederick Law Olmsted, who being duly sworn testified: 21 My profession is that of a Landscape Architect; I commenced by employment under the Central Park Commission in 1857, and have continued down to the present time, with an interruption during the war. During the year 1876 I was in that employment, at the rate of compensation of $6,000 per year, and have been paid for my services at that rate down to the 30th day of May, 1876, inclusive; I was not paid for the 31st day of May, or for June or July or August, 1876.8 Plaintiff as witness. 22 Cross-examined by Mr. Stetson, defendant's counsel: Q. Did you ever take the oath of office provided by the Constitution, upon assuming the duties of one of the Board of State Survey, under chapter 193 of the Laws of 1876? A. I did, on the 31st day of May, 1876, at noon of that day, at Albany; I was in Albany the whole of that day, in connection with the business; I gave up that appointment on the 18th July, 1876, I think; I resigned. Redirect: 23 Q. State the nature of the duties of Landscape Architect? A. I design most of the work of the Park, and have general supervision of those who are engaged in carrying it on, and a great variety of miscellaneous duties. Q. You took no oath of office as Landscape Architect? A. No; I never have taken an oath of office under the city; I continued to discharge my duties all the time as advisory architect from the 31st May down during the whole of June, July and August, 1876, and I have done so continuously. 24 It is admitted that on the 31st January, 1876, the compensation of Landscape Architect was reduced from $6,500 to $6,000 a year. Plaintiff's counsel reads from the minutes of the Department of Public parks, December 23d, 1873, the following: " The President then moved that the Board do now " take up and consider the matter of the reappointment " of employés of the department. Adopted. " Mr. Bissinger moved that Frederick Law Olmsted " be reappointed Landscape Architect at an annual " salary of $6,500." Plaintiff as witness. 9 The president put the question whether the Board 25 would agree to said motion, and it was determined in the affirmative. Redirect: My recollection is that I attended but one meeting of the Board of State Survey, and that was the organizing meeting; the rest of the time I was at work in the Department of Public parks; I had leave of absence to attend that meeting at Albany from the President of the Board. Recross: I afterwards received notice of reappointment as 26 supervising landscape architect of the parks; I think the date of that was the 4th August, 1876. Redirect: Q. Did you receive it in any other form than by a copy of the resolutions mentioned in the complaint? A. No other form. These resolutions are found at folio 4 of the complaint. The following calculation was agreed upon: 27 Salary month ending August 31, 1876 $500 00 Interest 22 20 Total principal and interest $522 20 Mr. Stetson, defendant's counsel, moved the court to direct a verdict for the plaintiff for the sum of $433.33, with interest, from the 18th day of September, 1876, the date upon which demand was made upon the Comptroller.10 Verdict. 28 The court thereupon directed the jury to render a verdict for the plaintiff for the sum of $522.20, subject to the opinion of the court at General Term, and the jury rendered their verdict accordingly. Case settled, and it is hereby consented that the same, or a printed copy thereof may be filed. April 14, 1877. Wm. C. WHITNEY, Counsel to the Corporation. S. E. LANE, 29 Attorney for Plaintiff. So ordered. JNO. J. FREEDMAN, Justice, Superior Court. Law Office of Smith E. Lane, 145 Broadway, Box 854, Post Office. New-York. 22 September 1877 Olmsted v. 2 Judgments Mayor etc My dear Sir: This is the fifth day this week I have called upon the Comptroller and Dep. Comptr. Storrs about your 2 Judgments and 6 others held by employees of the Dept. of Public Parks. There was objection made to transfer of funds according to the Resolution of the Board of D.P. Parks of the 12 instant. To-day Mr. Kelly promised me to make an arrangement for transfer of some funds of the Police Department by the Board of Apportionment, and said that all of the Judgments will be paid in a week or two. This is done as a favor to me, the Comptroller is paying no Judgments. They are all stayed by stipulations as inyour cases, or by appeals, until next January. Truly yours SE Lane Fredrick Law Olmsted Esq Olmsted v Nos. 1 & 2 Mayor No. 1 Amount of claim. Salary 1 day in May 1877 $16.10 June $500 July $500 1016.10 Interest. 83.01 No. 2. Amount of claim. Salary August 500.00 Interest. 38.13 121.04 ___________________ 1637.14 Counsel fee 20% 327.00 ______________________ 1309.64 Add paid by Mr. Olmsted fee on account 100.00 _______________________ 1409.64If not called for in 10 days, return to F. L. Olmsted, 209 W. 46th St., N. Y. John C. Shaw Esq 78 Nassau St.Since writing that within, I have put the matter in Mr Martin's hands. Will you please send all the papers to me, at 36 Union Sq. Office, Dp. P. Parks. Fred. Law Olmsted Took oath, 31st May Resignation sent 18th July Resolutions 4th Aug. [sketch]