Lethbridge v. Mayor of New York

15 N.Y.S. 562 | The Superior Court of the City of New York and Buffalo | 1891

Freedman, J.

The plaintiff was appointed May 15, 1886, a clerk in the department of public works of the city of Hew York at a salary of $1,000 peir annum. He served until January 20, 1887, when he was suspended from his position by a written communication from the commissioner then in office. From that day he has not been allowed to do any work for the city, although he applied repeatedly to be allowed to return to work. The action is brought ■for the recovery of the salary for two years and about six months subsequent to his suspension. The evidence shaw's neither a discharge nor an abandonment or relinquishment of the office, and inasmuch as under the decision of the court of appeals in Gregory v. Mayor, etc., 113 N. Y. 416, 21 N. E. Rep. 119, and the decisions of the general terms of the supreme court and of this court in the Aqueduct Cases,¹1 am compelled to hold that the power of suspension did not exist, the plaintiff was entitled to recover. The failure to make an appropriation constitutes no defense. All the questions presented on defendants’ appeal are discussed at length in the able opinion rendered by the learned judge below, and it is not necessary to add anything to the reasons there assigned. The only error committed by the trial judge consists in the deduction of the sum of $600 earned by the plaintiff from temporary employments during the period for which salary was claimed. Under the decision of the court of appeals in Fitzsimmons v. City of Brooklyn, 102 N. Y. 536, 7 N. E. Rep. 787, this deduction was unauthorized. The plaintiff is therefore entitled to prevail on his appeal. The judgment should be amended by adding the $600 deducted, and as so amended affirmed, with costs to the plaintiff. All concur.