30 N.Y.S. 405 | The Superior Court of the City of New York and Buffalo | 1893
The plaintiff was appointed “leveler" by the department of parks, December 16, 1885, at an annual salary of $900, and was “suspended” January 16, 1886. He was paid for all services actually rendered, and sues to recover salary until July 7, 1892, upon the theory that under Gregory v. Mayor, 113 N. Y. 416, 21 N. E. 119, “suspension” is not equivalent to “discharge,” hence his pay continued, though he did no work. In that, as in the Emmitt Case, 128 N. Y. 117, 28 N. E. 19, the plaintiff held an “office,” within the meaning of that term; yet neither its tenure nor salary was fixed by statute. The court regarded the salary as belonging to the incumbent, as an incident of his office, irrespective of the quantum of service rendered. The principle was clearly enunciated in Fitzsimmons v. City of Brooklyn, 102 N. Y., at page 538, 7 N. E. 787, as follows: “We have often held that there