McLoughlin v. City of New York

Headnote

McLoughlin v. City of New York, 178 App. Div. 884 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 13, 1917, affirming a judgment in favor of plaintiff entered upon an order of Special Term sustaining a demurrer to and directing a dismissal of the complaint. Plaintiff had been regularly appointed clerk of the change of grade damage commission. On September 15, 1902, all of the commissioners resigned and their successors were not appointed until March 24, 1904. There being no commissioners to sign a payroll during the interval, the plaintiff received no salary during that time. The newly appointed commissioners refused to act on the ground that they were not in office during the period mentioned. Plaintiff thereupon brought this action to recover the amount of his salary during the period in question. The Special Term held that even assuming that the plaintiff’s appointment survived the resignation of all the commissioners, the filing of a

voucher and certificate signed by a majority of the • commission was a condition precedent to the right of the plaintiff to payment, and that before the city could pay any salary a voucher should have been certified by the municipal civil service commission.