O'Connor v. City of New York

Headnote

O’Connor v. City of New York, 178 App. Div. 550 , affirmed.

Appeal, by permission, from a judgment, entered December 19,1917, upon a re-settled order of the Appellate Division of the Supreme Court in the first judicial department, which unanimously reversed an order of Special Term denying a motion, by plaintiff, for judgment in his favor upon the pleadings and granted said motion. Plaintiff, on February 28, 1907, was appointed a patrolman in

the police department of the city of New York for a probationary period of one month and at the end of that time, on March 27, 1907, was appointed to the permanent force. Each year thereafter, on March 27, he was advanced in grade, until on March 27, 1912, he attained the maximum salary of a patrolman. He claimed that ■under section 284 of the charter of the city of New York, as amended by chapter 278 of the Laws of 1907, he should have been advanced each year on the anniversary of his probationary instead of on the anniversary of bis permanent appointment, and sued to recover the amount due him by reason of the withholding of his increased salary for one month in each of five years. The defendant pleaded, as affirmative defenses, a two years’ Statute of Limitations; a two years’ and thirty days’ Statute of Limitations; a six years’ Statute of Limitations; a six years’ and thirty days’ Statute of Limitations; payment; accord and satisfaction; that, prior to the commencement of this action, it had not been adjudicated; by a court of competent jurisdiction, in a direct proceeding instituted for that purpose, that plaintiff was or ought to have been' advanced to the different grades on the dates specified in the complaint; that the certificates of the municipal civil service commission have not been affixed to the payrolls of the police department, certifying that, on the dates mentioned in the complaint, the plaintiff held the positions which entitled him to the differences in salary which he now claims, and lack of appropriation.