Matteson v. United States

60 Ct. Cl. 880 | Ct. Cl. | 1925

MEMORANDUM BT THE COURT

The plaintiff is entitled to 50 per cent increase in pay for aviation duty under the case of Lushey, 56 C. Cls. 411, affirmed 262 U. S. 62, and the defendant makes no contention as to this feature of the case.

The defendant gave notice that it would assert a counterclaim “ for illegal and improper payment to the plaintiff of the difference between the pay of an ensign and the pay of a lieutenant, junior grade, during the period from April 1, 1919, to May 7, 1921, in the sum of $753,” and now asks judgment in its favor “for the difference between the amount of said counterclaim and the amount found due the plaintiff for 50 per cent additional pay as aviator between September 19, 1919, and January 2Y, 1920, with costs taxed against the plaintiff.”

We need not discuss the theory upon which defendant’s counterclaim is asserted, for the reason that there is an absolute failure of necessary proof. The court can not assume that payments alleged to have been “ illegal and improper ” were made to the plaintiff. No payments are proven.

Geaham, Judge, took no part in the decision of this case.