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Dodge v. City of New York

278 N.Y. 25 Court N.Y. Decision date 1938-04-13 English

Contents

Majority

p. 25
William C. Dodge, Respondent, v. City of New York, Appellant.
Argued March 18, 1938;
decided April 13, 1938.
p. 27
William C. Chanler, Corporation Counsel (Oren Clive Herwitz, Paxton Blair and Robert H. Schaffer of counsel), for appellant.
By virtue of section 149 of the Charter of the City of New York (L. 1901, ch. 466), failure to sign the payroll under protest precludes recovery. ( People ex rel. McLaughlin v. Board of Police Commissioners, 174 N. Y. 450 ; Matter of McCarthy v. McGoldrick, 266 N. Y. 199 ; Ryan v. City of New York, 177 N. Y. 271 .)
Matthew G. Saltzman and Abraham Saltzman for respondent.
Where a statute fixes the salary of a State officer there is no principle upon which the official can be compelled to take less than the salary fixed by law. Section 149 of the charter in so far as it relates to an accord and satisfaction, applies only to city officials and employees, and does not apply to constitutional State officers. (Matter of Flaherty v. Craig, 184 App. Div. 428 ; Schuttinger v. Woodruff, 259 N. Y. 212 ; People ex rel. Becker v. Board of Education, 162 N. Y. Supp. 643 ; Moore v. Board of Education, 121 App. Div. 862 ; Golding v. City of New York, 140 N. Y. Supp. 1020 ; Grant v. City of Rochester, 79 App. Div. 460 ; 175 N. Y. 473 ; Clark v. State, 142 N. Y. 101 ; Wright v. State, 223 N. Y. 44 ; Glavey v. United States, 182 U. S. 595 ; People ex rel. Satterlee v. Board of Police, 75 N. Y. 38 ; Kehn v. State, 93 N. Y. 291 ; McCunney v. City of New York, 40 App. Div. 482 ; Emmitt v. Mayor, 128 N. Y. 117 ; People ex rel. McLaughlin v. Board of Police Commissioners, 79 App. Div. 82 ; Hanley v. City of New York, 250 App. Div. 552 ; 275 N. Y. 482 .)

In the submission of controversy the parties stipulated that “ plaintiff did not write upon his payroll receipts for the period from January 1, 1934 to June 30, 1937 that the amount received by him was

p. 28
received under protest.” Under the provisions of section 149 of the Charter of the City of New York (Laws 1901, ch. 466, as amd.) there can be no recovery upon any further claim for salary. (See opinion in Quayle v. City of New York, 278 N. Y. 19 , decided herewith.) We do not pass upon any other question.

The judgment should be reversed and (the complaint dismissed, without costs. (See 278 N. Y. 599 .)

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Judgment reversed, etc.

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