Rogers v. City of New York — 120 A.D. 513

Majority

p. 513

Frank Rogers, Appellant, v. The City of New York, Respondent.

Second Department,

June 14, 1907.

Headnote

Municipal corporations — street cleaning department, city of New York — employee absent without leave cannot recover salary.

When an assistant to the section foreman in the department of street cleaning in the city of New York admits that following an accident which incapacitated him, he was absent froria duty without leave, during which period he was duly discharged, he is not entitled to recover his salary during the period of absence, for the commissioner of street cleaning is expressly authorized by section 537 of the charter to withhold the salary of members of -the force absent' without leave.

Appeal by the plaintiff, Frank Rogers, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 17tli day of January, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Kings County Trial Term.

William J. Bogenshutz, for the appellant.

James D. Bell [Jerome W. Coombs and William B. Ellison with him on the brief], for the respondent.

The plaintiff, who was an employee of the defendant, as an assistant to section foreman in the department of street cleaning, received an injury on December 27, 1903, while engaged in the performance of bis duties, which incapacitated him from rendering further services down' to the time of the trial of this action. On September .2, 1904, be applied for a leave of absence without pay until December 2, 1904, which was granted. On October 14, 1904, charges were' preferred against him by the commissioner, based upon his physical inability to perform his duties, a copy of which was duly served and an opportunity given Mm to be heard on October twenty-first. On October twenty-fourth following he was dismissed from the department for physical incompetency. This action

p. 514

■ was brought to recover the compensation attaching to his position from the time of the injury to November 1, 1904. Upon the trial the plaintiff testified that he never made any application for absence on sick'leave and never authorized any one to make such application foi him. Section 537 of the charter of Greater New York (Laws of , 1901, chap. 466) empowers the commissioner of street cleaning, “ in his discretion, to deduct and withhold pay, salary or compensation from any member or members of the force for and on account of absence for any cause without leave.” At the close of the plaintiff’s evidence the learned trial justice granted defendant’s motion to dismiss the complaint upon the ground that the plaintiff had failed to establish a cause of action, and from the judgment entered thereon the plaintiff ajipeals. •

The plaintiff having been absent according to his own evidence without leave during the time for-which he seeks to recover, the fact that he liad not been paid for the period during which he rendered no services did -not establish a cause of action, the statute expressly authorizing the’ commissioner to deduct, arid withhold his compensation, nor do the provisions of section 536, providing that in cases where certain employees (of whom plaintiff was one) are temporarily absent and their places filled by others they shall not ■receive compensation for the time absent “unless such injury or illness was caused by service in the department,” and plaintiff, such an employee,-is required, as a condition precedent to receiving compensation, to apply for absence on sick' leave, and this, if granted, tinder the provisions of section 537, entitles him, in the discretion of the commissioner, to full pay, if ¡the absence is not longer than, twenty days, and to one-half pay if longer.

No cause of action was established and the judgment must be affirmed, with costs. ,

Woodward, Jenks, Hooker and Gaynor, JJ., concurred,

' Judgment affirmed, with costs.