McGrade v. City of New York — 110 N.Y.S. 517

Majority

p. 517

McGRADE v. CITY OF NEW YORK

(Supreme Court, Appellate Division, Second. Department.

May 1, 1908.)

Headnote

Municipal Corporations—Clerics—Salary—Estoppel.

A fire department clerk, having become legally entitled to a salary of $1,500 a year, by accepting monthly payments at the old rate of $1,350 a year, did not estop himself from recovering the difference.

Appeal from Municipal Court of New York.

Action by Joseph McGrade against the city of New York. Erom a judgment for plaintiff, defendant appeals.

Affirmed.

Argued before WOODWARD, JENKS, HOOKER, RICH, and GAYNOR, JJ.

James D. Bell (Edward Lazansky, on the brief), for appellant.

Otto C. Wierum, Jr., for respondent.

The plaintiff was a clerk in the fire department of the city of New York at a salary of $1,500 a year. In 1902 such salary (in common with other salaries) was reduced 10 per cent., i. e., to $1,350 a year. On April 12, 1905, the salaries of clerks in the fire department were fixed at from $1,500 to $2,000 a year by a resolution passed by the board of estimate and apportionment and the board of aldermen and approved by the mayor, that being the legal method. The plaintiff thereby became entitled to the said minimum salary of $1,500, but was thereafter paid monthly at the former rate of $1,350, and this action is to recover the difference. No reason is given for withholding part of his salary. That he received the lesser sum does not estop him from claiming his legal due. Kehn v. State, 93 N. Y. 291 .

The judgment should be affirmed.

Judgment of the Municipal Court affirmed, with costs. All concur.

Cases cited

Kehn v. State 93 N. Y. 291 N.Y. 1883-10-02 p. 517