Morris v. Mayor of New York

Headnote

This was an action to recover a balance alleged to be due plaintiff upon his sala’ry as clerk in the fire department of the city of New York. He was appointed clerk in August, 1875, at a salary of $1,200 per a/rmwm. On December 31,1875, the board passed a resolution by its terms relieving him from duty as clerk, and appointing him messenger at a salary of $800 jpsr annum. From that time up to December 31, 1881, he performed the same duties but was paid as messenger, giving receipts in full for his services.

The court here say: “ The cases of Munday ( 72 N. Y. 445 ), and Dumahaut (96 id. 672), cited by the appellant, were on certiorari, and the proceedings for removal held illegal, because the returns disclosed no misconduct on the part of the accused officer. The plaintiff in this case seems equally free from fault, and to have been so treated by the respondent. Notwithstanding the formal order which, in terms, relieved him from his duty as clerk, he continued as before without any interruption, although under another name, to perform the same services. He at all times acted as clerk, and at no time as messenger. Moreover, he has each month received payment at the prescribed rate, and acknowledged the same as in full satisfaction for the duties performed by him, and for the entire time specified. Nothing was accomplished by the order but a reduction of salary, and if more was intended, the purpose was not carried into effect. The thing done was within the power of the board (Laws of 1873, chap. 335, § 28), and not forbidden by statute. The principles upon which Riley v. Mayor, etc. ( 96 N. Y. 331 ), was decided apply here, and require the affirmance of the judgment.”