94 N.Y.S. 175 | N.Y. App. Div. | 1905
The facts in this case cannot distinguish it from the case as made in McCabe v. City of New York (77 App. Div. 637; affd. by the Court of Appeals, 176 N. Y. 587). The fact that the affidavits were taken in the morning before business hours does not change the result any more than the rendition of other services charged upon the plaintiff performed either before or after office hours would authorize extra compensation. What plaintiff did was done in the performance of his duties as chief messenger. They were charged upon him by specific direction, and he performed them as service required by the department and in the discharge of his duties.
The judgment and order should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event. .
Patterson, O’Brien and Lauqhlin, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.