| N.Y. App. Term. | Jan 5, 1912
The action is to recover wages at the rate of $2.50 per day for a period between May 14 and August 13, 1910 (Sundays and holidays excepted), both inclusive, which plaintiff claims to be due him.
The uncontroverted facts are that plaintiff was employed in the department of highways as a driver of a team of horses for a Mr. Dye, an engineer in that department. His wages were $2.50 per day, which were fully paid up to May 14,, 1910. On May 14, 1910, the commissioner of public works, the plaintiff’s appointing officer, substituted automobiles for the horses and carriages that had formerly been used, and Mr. Dye informed plaintiff that he was to have an automobile, and “was not going to use a team any more,” and further told him to report to Mr. McManus, a clerk in the said department, who at that time had charge of the clerical force. He did thereafter report to Mr. McManus each day, who informed him that there was nothing for him to do. On August 13, 1910, he was formally discharged, and his name transmitted to the municipal civil service commission to be placed upon the appropriate preferred list. During this period the plaintiff filled out a daily time report, in which he certified that he spent eight hours each day awaiting orders from the bureau of highways, but which he retained himself, and, during this time, his name was carried on the pay rolls at $2.50 per day, and in the column where the amount of money earned should be entered there was an entry, “No time,” and no amount of money was carried out.
Upon these facts the court directed a verdict for the full amount claimed. In this the court erred. The plaintiff came under that class of employés which the Appellate Division of this department has thus described:
“Third. That there is a class ot employes in minor positions, whose pay depends upon work performed, and who cannot recover, unless after service actually rendered.” Sutliffe v. City of N. Y., 132 A.D. 831" court="N.Y. App. Div." date_filed="1909-06-18" href="https://app.midpage.ai/document/sutliffe-v-city-of-new-york-5211467?utm_source=webapp" opinion_id="5211467">132 App. Div. 831, 835, 117 N. Y. Supp. 813, 816.
This is an action for wages. The definition of “wages” is:
"That which is paid for a service rendered.” Century Dictionary.
Labor performed or service rendered is the foundation of the action. It has been repeatedly held that a per diem employé of the city could only recover upon proof of actual work. Walsh v. City of N. Y., 143 A.D. 150" court="N.Y. App. Div." date_filed="1911-02-24" href="https://app.midpage.ai/document/walsh-v-city-of-new-york-5219100?utm_source=webapp" opinion_id="5219100">143 App. Div. 150, 127 N. Y. Supp. 972; O’Donnell v. City of N. Y., 128 A.D. 186" court="N.Y. App. Div." date_filed="1908-10-22" href="https://app.midpage.ai/document/odonnell-v-city-of-new-york-5208500?utm_source=webapp" opinion_id="5208500">128 App. Div. 186, 112 N. Y. Supp. 760; Eckerson v. City
The judgment should therefore be reversed, with costs to appel-. lant, and judgment entered for the defendant, dismissing the complaint on the merits. All concur.