63 Misc. 304 | N.Y. Sup. Ct. | 1909
Plaintiff was, on July 24, 1905, duly appointed in the classified civil service a transitman and computer in the office of the president of the borough of Richmond at a salary of $1,350, subsequently increased to $1,500 per annum.
Plaintiff continued to tender his services to said president, which were refused. He subsequently obtained other employment and brought this action, on the ground of his wrongful discharge, to recover his salary from March 1 to June 18, 1908, $437.50. Ho charges were preferred against the plaintiff, nor is it suggested that he was in any way incompetent for the performance of his duties. The defense was that plaintiff’s employment was rendered unnecessary and abolished; that he was lawfully suspended without pay; that he brought no proceeding for his reinstatement; that, pursuant to section 1543 of the Greater Hew York charter, the municipal civil service commission was duly notified of such suspension, whereby plaintiff was certified for appointment and acquiesced in said action by receiving an appointment as draughtsman in the bureau of sewers, borough of Manhattan.
The learned trial justice, in a memorandum decision, held as follows: “ If the plaintiff were removed he could only be removed after notice. There is no pretense that he was so removed. * * * While I think the plaintiff has a claim against the city based upon his appointment and offer to do the work required of him, still I think he cannot recover at this time in this action.” Thereupon the complaint was dismissed, on the ground that the borough president had not been required to certify plaintiff’s name on the pay-roll nor
The judgment should be reversed and judgment rendered for the plaintiff for the amount, with interest, as demanded, with costs in this court and in the court below.
Gildersleeve and Goff, JJ., concur.
Judgment reversed and judgment rendered for plaintiff, as demanded, with costs in this court and in court below.