In the Matter of the Application of The Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title Wherever the Same has not been Heretofore Acquired, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening East One Hundred and Seventy-sixth Street (although not yet named by proper authority), from Jerome Avenue to Monroe Avenue, as the Same has been Heretofore Laid Out and Designated as a First-class Street or Road, in the Twenty-fourth Ward of the City of New York. Edward B. Whitney, Appellant; The City of New York, Respondent

In the Matter of the Application of The Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title Wherever the Same has not been Heretofore Acquired, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening East One Hundred and Seventy-sixth Street (although not yet named by proper authority), from Jerome Avenue to Monroe Avenue, as the Same has been Heretofore Laid Out and Designated as a First-class Street or Road, in the Twenty-fourth Ward of the City of New York. Edward B. Whitney, Appellant; The City of New York, Respondent. New Toi'h city—fees of commissioners of assessment for services rendered, after the new charter went into effect, in proceedings previously instituted—chapter 31 of chapter 378 of 1897 does not apply to street openings, and is not retrospective. The fees of commissioners of estimate and assessment, appointed- in proceedings instituted in the city of New York, prior to January 1, 1898, for services in such proceedings rendered subsequent to that date, when the Greater New ' York charter (Chap. 378, Laws of 1897) went into effect, are to be determined by that act. The right to such compensation accrues from services performed, and not from the nature or tenure of the office. Such fees are to be allowed under section 998 of title 4 of chapter 17 of the Greater New York charter, at the rate of six dollars a day, and not at the rate of ten dollars a day, as provided in the Consolidation Act (Chap. 410, Laws of 1883, as amended by chap. 449, Laws of 1895), and section 3396 of the Code of Civil Procedure, as amended by chapter 90 of the Laws of 1896. It seems, that chapter 31 of the Greater New York charter, relating to the acquisition of lands or interests therein for public purposes, does not apply to street opening proceedings at all, past or prospective, or to any other proceedings, even those embraced within that chapter, instituted prior to the time of the taking effect of the charter. Appeal by Edward B. Whitney, one of the commissioners of estimate and assessment in the above-entitled proceeding, from so much of an order, made at the Hew York Special Term and entered in the office of the clerk of the comity of Hew York on the 25th. day of May, 1898, as taxes his fees as commissioner of estimate and assessment herein at the rate of six dollars per day for services rendered after January 1, 1898, and refuses to tax such fees at - the rate of ten dollars per day for such period; and also from so much, of said order as reduces his fees from the sum of $160, as claimed in the bill of costs, to the sum of $148. Arthur Berry, for the appellant. Theodore Connoly, for the respondent. [MAJORITY — O’Brien, J.:] O’Brien, J.: The question here presented is whether commissioners of estimate, and assessment, appointed in proceedings instituted prior to January 1, 1898, when the Greater Hew York charter went into' effect (Chap. 378, Laws of-1897), and who thereafter rendered.services in such proceedings, were entitled to á continuation of their fees at the rate of ten dollars a day, which was -the- rate fixed by law, or ■ became entitled to only six dollars a day, the- rate fixed by the new charter. The question of vested.-rights is not involved. These commissioners are not constitutional officers, and with reference to services that were rendered subsequent to the passage of the charter, their right ■ to compensation therefor, as justly observed by the learned judge at Special Term-, does not belong to “ this category of rights and remedies. A mere expectation is not. a vested right. * * * The right to compensation, accrues from services performed . and- not from the nature or tenure of the office, and as we h'ave already, observed the compensation of statutory officers not specially protected by the Constitution may be increased or decreased by the Legislature.” It w’as, therefore, perfectly competent for the Legislature to reduce the salary, of these officials. (Connor v. The Mayor, etc., of New York, 5 N. Y. 285; Smith v. The Mayor, etc., of New York, 37 id. 518; Suth: Stat. Const. § 164.) The right to salary Arested only as it accrued, and the. fact that the proceeding was commenced before the new law went, into effect is immaterial. The sole question relates to the intention of the Legislature as manifested by the provisions'of the new charter. Section 998 of the charter fixes the fees of such commissioners by providing that ‘leach of the commissioners of estimate and assessment -shall receive six dollars -for each day upon which the said commissioners shall meet and be actually and. necessarily employed in the performance of the duties imposed upon them by this act.” It is the use of the words “ this act” at the end of the provision just quoted that gives rise to the .two contentions, the appellant insisting that for services rendered after the charter went into effect, but in proceedings initiated before that date, they should be taxed at the rate of ten dollars per day as provided in the Consolidation Act (Chap. 410, Laws of 1882), as amended by chapter 449 of the Laws of 1895, and the Code of Civil Procedure (§ 3296), as amended by chapter 90 of the Laws of 1896, while the respondent is equally strenuous in contending that section 998 of title 4, chapter 17, of the new charter, fixing the fees of the commissioners, applies alike to proceedings instituted thereunder and to proceedings instituted by the mayor, etc., prior to January 1, 1898, and pending when the charter went into effect. It being entirely competent, as stated, for the Legislature to change the fees of the commissioner in pending proceedings, the question really narrows itself down to the construction to be given to section 998 of the charter, which is the latest expression of the Legislature, and, therefore, controlling. Standing alone, the use of the words in that section, “for any service performed under this title,” might indicate an intention to apply them only to future proceedings, the language being susceptible of the view that the title was drafted as if pending proceedings did not exist. When we find, however, that pending street opening proceedings were provided for, if at all, by the repeal provisions and the saving clauses, the language quoted is to be construed in the light of such other provisions, and not as though'it stood separate and alone. Those same words were used in every act relating to fees of commissioners- since 1882. Thus they are found in the Consolidation Act, and were applied to proceedings pending, whether begun under the Consolidation Act or after its amendment, and yet as well might'the contention be made that such language was intended to affect only proceedings initiated after, the Consolidation Act Avas amended. It will be found, however, that the amended law was always regarded as a continuation of the law as it stood when the' commissioners were first appointed, nor was there any difference betAveen the duties imposed by the original act and the act as amended, so far as the continuation and completion of- the proceedings were concerned. The repeal and saxfing clauses show that it was the intention of the Legislature that section 998 was not to he entirely a new enactment applicable to future proceedings, but was a continuation of the Consolidation. Act of 1882. This view is emphasized by many sections of the charter, notably section 1608, which in fact so provides. Mor .do we find, upon an examination of the saving provisions in the charter, such as section 1614, that the fees of commissioners in pending proceedings are protected. Mor is the appellant’s position strengthened by a reference to section 1448 of chapter 21 of the charter. That chapter provides generally for the acquisition of lands or interests therein for public purposes, but section 1448 expressly excepts street opening proceedings from the operation of the chapter. After providing that the chapter shall not apply to any proceedings for the opening of streets, etc., these words follow : “ Or to any proceedings of any nature instituted prior to the time of the taking effect of this act, and such proceedings shall be conducted in all respects as if this act had not been passed.” It is clear that this last part of the sentence refers to that part which immediately' precedes it. When, therefore, the Legislature said that “such proceedings shall be conducted in all respects as if this act had not been passed,” it referred, not to the proceedings which were wholly excluded from-the operation of the chapter, but to such proceedings of any nature other than those so excluded as might have been previously instituted,' Thus the reasonable construction is that the chapter does not apply (1) to street opening proceedings at all, past or prospective, or (2) to any other proceedings — even those embraced within the chapter — instituted prior to the time of the taking effect of the charter. It is plainly these other proceedings, and these alone, which are contemplated by the concluding part of the sentence. Without attempting to refer to all the various sections of the charter bearing upon this question, it is sufficient to say that we concur in the conclusion reached by-the learned judge at Special Term, that it was the intention of the Legislature, with reference to street opening-proceedings, to have the charter provisions but a continuation of the existing provisions of law on that subject, and that-, except so far as amendatory of or supplemental to then existing .provisions,' the proceedings were to be continued .as though the charter, had not been-bassed.. Having given expression to . an intention to" change-the rate of the fees to be paid to commissioners after January 1, 1898. to that extent the charter must be regarded as an amendment of the Consolidation Act. . . ■ The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements. Van Brunt, P. J., Barrett, Rumsey and McLaughlin, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.