Beach v. Mayor of New York — 32 N.Y. St. Rep. 939

Majority

p. 939

George O. Beach, Pl'ff, v. The Mayor, etc., of New York, Def't.

(Supreme Court, General Term, First Department

Filed June 26, 1890.)

Headnote

Municipal coepobations — Olebks—When suspension equivalent to bemoval.

By a resolution of the dock hoard it was declared that the continuance of plaintiS’s services as apportionment clerk was unnecessary and there was no present use for him as an attache of the department; that until further order there should be but one such clerk; that until the work required further clerical assistance plaintiff was suspended and relieved from further duty or service, and that his name be taken from the pay

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roll during such suspension. Held, that this was a removal and not a suspension, and that it would require a reappointment to entitle him to any salary.

(iGregory v. Mayor, 113 N. Y., 416 ; 33 N. Y. State Rep., 703, distinguished.)

Motion for new trial on exceptions ordered to be heard in the first instance at the general term.

D. J. Dean and W. Garmalt, for. motion; Phillips & Avery, opposed.

The plaintiff prior to December 11, 1886» was one of the apportionment clerks in the dock department. On that day he received a notice signed by the president of the dock board to the effect that on the 8th of December, 1886, a resolution was adopted by the board that the continuance of the said George O. Beach as apportionment clerk was wholly unnecessary and there was no present use for him as an attache of this department, and

“ That until further ordered, there be but one apportionment clerk employed in this department and that, until the work of this'department shall require further clerical assistance, the said George 0. Beach be and he is hereby suspended and relieved from further duty or service in this department, and that his name be taken from the pay-roll thereof during such suspension. This resolution to take effect from and after December 11, 1886.”

On the receipt of this notice the plaintiff went to Mr. Stark, the president of the dock board, who referred him to Commissioner Matthews. On three or four occasions he reported to Mr. Stark for duty and each time received an answer referring him to Commissioner Matthews. The plaintiff as far as the case shows did not report to Commissioner Matthews.

Upon this state of the case the defendant’s counsel moved to dismiss the complaint upon the ground that the transaction shows a discharge and upon the ground that it shows an acquiescence so far as any reporting or claiming of the place by the plaintiff to the dock commissioners is concerned.

This was denied and the court directed the jury to find a verdict for the plaintiff for the salary attached to the position which he occupied. To this ruling the defendant excepted, which brings up the only question necessary to discuss upon this motion.

The plaintiff relies upon the case of Gregory v. The Mayor, 113 N. Y., 416 ; 22 N. Y. State Rep., 703, and claims his salary upon the ground that the dock board had no power to suspend the plaintiff, though they had a power of removal. The court said in Gregory v. The Mayor, “ In such a case, the power of removal is to be exercised if at all at once and finally. It was not meant that the commissioners should have power to arbitrarily suspend without pay.”

We think however that the plain intent to be gathered from the resolution upon the part of the board was to abolish the position held by the plaintiff and to remove him as an apportionment clerk. The resolution shows that the work for the doing of which he had been appointed had been completed; that the con

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tinuation of his services were wholly unnecessary and he was thereupon suspended and relieved from further duty or service in the department.

It is true that the words “ during such suspension ” are used. But it was the evident intention of the board to remove him from his office, and that it would require a re-appointment in order to entitle him to any salary.

This it appears to us was the intention plainly to be gathered from the wording of the resolution, although there may be phrases in it inconsistent with such construction.

Under these circumstances the case of Gregory v. The Mayor does not apply, and the plaintiff was not entitled to the salary for which a recovery was had.

The motion for a new trial should be granted, with costs to the defendant to abide the event

Brady and Daniels, JJ., concur.