McCloskey v. City of New York — 265 N.Y. 309

Majority

p. 309

John J. McCloskey, Respondent, v. The City of New York, Appellant.

(Argued October 15, 1934;

decided October 23, 1934.)

Paul Windels, Corporation Counsel (Henry J. Shields and Rollin H. Reid of counsel), for appellant.

Nathan A. Goldenthal and Max Bernstein for respondent.

The action is for wages and salary The complaint in four causes of action alleges that services were rendered by plaintiff as laborer from September 15 to September 27, 1930; as junior topographical draughtsman from December 9 to December 30,1930; as emergency automobile engineman from January 2 to January 20, 1931; as motor grader operator from January 26 to March 18, 1931. The defendant city of New York contends that plaintiff should be denied a recovery upon the ground that he was appointed in the civil service in violation of law. We find it unnecessary to pass upon the validity of that contention. Plaintiff testified that he rendered no service except as a confidential representative of the head of a municipal department. Neither the' character nor the extent of such service is shown by the record. There is a failure of proof of each of the alleged causes of action. It was error to deny the motion for dismissal of the complaint made at the close of the case.

The judgments should be reversed and the complaint dismissed, with costs in all courts.

Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ., concur; Lehman, J., not sitting.

Judgments reversed, etc.