Walsh v. City of New York

127 N.Y.S. 972 | N.Y. App. Div. | 1911

Jenks, P. J.:

It is clear that the theory of this action is recovery of wages. It was brought in the Municipal Court and the pleadings were oral. The complaint is for “ wages due,” and the bill of particulars furnished by the plaintiff states that the action is for wages due. It appears that the plaintiff was in the service of the city of New York as a laborer, whose work was unskilled and manual. He was paid $2.50 a day when he actually worked. If the weather did not permit him to work he was not paid. He was “ laid off,” and his claim is for a sum that represents his day wages during a period when he did not work. He testifies that a laborer named Horn took his place and did the work that had theretofore been allotted to him. I think that the judgment for the defendant was justified by the judgments in O'Donnell v. City of New Fork (128 App. Div. 186) and the cases cited, and in Higgins v. Mayor, etc. (131 N. Y. 138). It is contended that the proof shows that the plaintiff was laid off or removed or suspended for the reason that he was a henchman of one faction of a political party which was in disfavor with his superior officer, and that the formality of recertification of his name to the civil service commission was not observed, so that he was not in line for re-employment. Even so, neither circumstance would render the defendant liable in this case for wages during the period when plaintiff did not work. (Authorities supra.) Moreover it appears that within about two months of his “ laying off ” his name was placed upon the certified list. (See People ex rel. Brown v. O'Brien, 137 App. Div. 311, 312; People ex rel. April v. Butler, 122 id. 790, 792.) •

The judgment of the Municipal Court should be affirmed, with costs.

Burr, Oarr, Woodward and Rich, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.