78 N.Y.S. 442 | N.Y. App. Div. | 1902
The plaintiff claims that from October, 1899, to October, 1901,, he was lawfully and continuously in employment as a member of the uniformed force of the department of street cleaning of the-city of New York, in the borough of Brooklyn, at a salary or compensation of $720 a year. Under a resolution of the board of estimate and apportionment of the city of New York that amount, was, on the 30th of October, 1899, fixed as the yearly compensation of street sweepers and drivers in the department of street cleaning from and after the 1st day of January, 1900. The plaintiff' claims that he has not received on account of his compensation as. such employee the sum of $138.04, remaining due and owing to. him as a balancé of moneys which the city of New York has. neglected and refused to pay him and has unlawfully withheld and caused to be withheld from him, the said balance being for seventy days’ .services at the rate of $720 a year.
As a partial defense the city of New York sets up that the sum appropriated by the board of estimate and apportionment of the city of New York for the street cleaning department of the borough of Brooklyn in the year 1899 was insufficient to satisfy and pay all of the street sweepers therein employed at the rate ,of $720 per annum, and that all the money appropriated by' the board of estimate and apportionment for the years 1900 and 1901 was wholly exhausted in the payment of liabilities incurred by the department during such years; and the sum claimed by the plaintiff and set forth in the complaint would be in excess of the sum so appropriated, and that, consequently, pursuant to sections 1541 and 1542 óf the charter (Laws of 1897, chap. 378), is not a charge, claim or liability against this defendant. It is further asserted by the city as matter of defense that if a fixed salary were prescribed at the rate of $720 per annum the street cleaning department was entitled to deduct therefrom a certain portion of the plaintiff’s pay, under
The question is whether or not the plaintiff is entitled to receive the full amount of $720 a year notwithstanding his action in waiving that right and thus placing himself in a position to be continued in the employment of the city. His consent to the arrangement was purely voluntary and in no sense compulsory and made under circumstances conclusively showing that he fully understood the necessity that required the arrangement to be made. Every consideration of equity, morality and propriety requires that he should be regarded as estopped from claiming adversely to his deliberate agreement. It seems to us that the question is one not relating to an officer whose salary is an incident to his office and that the views expressed by the late Hr. Justice Ho Adam in People ex rel. McCloskey v. Andrews (9 Misc. Rep. 569) state the real legal status
The judgment appealed from should be reversed, with costs,
Van Brunt, P. J., O’Brien and McLaughlin, JJ'., concurred; Laughlin, J., concurred on first ground stated. .
Judgment reversed, with costs.