82 N.Y.S. 244 | N.Y. Sup. Ct. | 1903
In August, 1900, the plaintiff was in the employ of the city through the bureau of highways, as assistant foreman of street repairing in the borough of The Bronx, at a fixed rate of wages of three dollars per day, having received his appointment through the proper officer, from the civil service list.
The heads of the department of highways, in July, determined that unless some economy was practiced in the administration of the department the appropriation made by the board of estimate for the year would be exhausted. Upon the recommendation of the superintendent, the commissioner of highways issued orders that the labor forces in the bureau of highways for the borough of The Bronx be placed, on the third of August, on three-quarters time. This order went into effect on that day and continued in force until the fifteenth of December following. The order was read to the plaintiff and all of his men by the foreman. The three-quarters time was brought about by direction to the men not to go to work until nine o’clock in the morning, instead of eight, and to stop one hour earlier in the afternoon.
The plaintiff brings this action to recover seventy-five cents a day for each day that he worked six hours instead of eight during the time said order was 'in force. If the plaintiff is entitled to recover at all it is conceded that he is entitled to recover the sftm of eighty-four dollars and seventy-five cents.
At the time the order was issued, the plaintiff protested to the foreman that it was not fair to reduce the working hours, and thus prevent him from earning his full three dollars per day. He stated to the foreman that he was ready and willing to work the
The plaintiff does- not claim that his position was an office to which 'a salary of three dollars a day was attached, and which he was entitled to whether he worked or not. His contention is that he having been appointed from the civil service- list, that by operation of the Civil Service Law, although his superiors had the right to discharge him, they had no right to suspend him, and that for such time as he was suspended without discharge he has the right to compensation. Counsel for the plaintiff by an elaborate and ingenious brief seeks to demonstrate that the object of the Civil Service Law would be frustrated by conceding any power of suspension to the heads of departments, and insists that the facts proved by him on the trial bring the case squarely within the principles laid down in Driscoll v. City of New York, 78 App. Div. 52. I do not think that case compels a finding in plaintiff’s favor. It is true that the head of the highway department could not arbitrarily suspend the plaintiff and nullify the policy of the Civil Service Law by limiting his employment to an hour a day, or half an hour a day, and thus render his position on the civil service list a burden rather than a benefit. The decisions are all careful to limit the power of heads of departments to' arbitrary suspension. There may be employees on the civil service list engaged in outdoor work which cannot be performed in rainy weather, or freezing weather. Must it be said that an ordinary day laborer must be paid for days on which he cannot
It is the arbitrary and nullifying act on the part of the heads of departments towards men employed under the Civil Service Law that the courts will protect the employee against, and not, I think, the reasonable and fair exercise of the power of regulating work for the best interests of the municipality and of the laborer as well. An unreasonable curtailment of a day’s work, or a curtailment which runs an unreasonable length of time, the courts will protect the employee against. As well, I think, the court should protect the employer in the exercise of the reasonable prosecution of his work, and temporary suspension for any reasonable cause. In the present case it was considered necessary for the city, on account of lack of funds, to put the force in the borough of The Bronx on three-quarters time; and it was considered also better for the men to be employed three-quarters of the time than to discharge them and let them have no employment at all.
But if the Civil Service Law will not permit of this, construction, still the plaintiff cannot recover because he acquiesced in the situation. He acquiesced in the reduction of time and took his pay from week to week on that basis. I do not think it is important whether the plaintiff knew the heading to the pay-roll which he signed each week or not. He knew that he was receiving his pay for the services performed by him for the preceding week. Where the payment of wages or rent is made from week to week, or month to month, the law raises a presumption not only that it is in full but that all previous payments have been made. In addition to this the plaintiff continued to work at the reduced time from day to day after being notified that three-quarters time was all he would be permitted to labor. It is true that he protested against it, and said that it was not
The complaint must be dismissed, with costs.
Complaint dismissed, with costs.