Majority
p. 199In the Matter of John J. McCarthy, Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, Appellant. (Argued January 4, 1935; decided January 24, 1935.) The waiver which the petitioner signed was legally valid, and should have been held a bar to the claim for additional compensation. (Ryan v. City of New York, 177 N. Y. 271 ; People v. Fitzgerald, 180 N. Y. 269 ; Hendrickson v. City of New York, 160 N. Y. 144 .)
Paul Windels, Corporation Counsel (Paxton Blair and Edmund L. Palmieri of counsel), for appellant.
Alfred J. Talley and Edmund J. Delany for respondent.
By a written instrument dated March 1, 1933, petitioner, for a consideration, agreed that he
p. 200
waived the salary of deputy chief of the fire department of the city of New York during the emergency declared to exist by chapter 637 of the Laws of 1932, and that he accepted pay at the lower rate of a battalion chief’s salary, “ said rate of pay to continue during the period of the emergency or unless and until the Board of Estimate and Apportionment shall provide otherwise.” It was not until October 30, 1933, that the Board of Estimate and Apportionment provided otherwise, but, in this proceeding, petitioner has recovered the difference between the salaries of the two ranks -from March 1, 1933, to October 31, 1933. We think that this result is contrary to the terms and intent of the waiver which was executed by petitioner as an inducement to bis appointment to the rank of deputy chief.
The orders should be reversed, with costs in all courts, and the motion denied.
Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ., concur; Finch, J., not sitting.
Orders reversed, etc.
Cases cited
- Ryan v. City of New York 177 N. Y. 271 p. 199
- People v. Fitzgerald 180 N. Y. 269 p. 199
- Hendrickson v. City of New York 160 N. Y. 144 p. 199