Majority
p. 355Albert Emmitt, App’lt, v. The Mayor, etc., of New York, Resp’t. (New York Superior Court, General Term, Filed April 16, 1891.)
Headnote
1. MUNICIPAL CORPORATIONS — AQUEDUCT COMMISSIONERS HAVE NO POWER TO SUSPEND INSPECTOR WITHOUT PAY.While the aqueduct commissioners have power to discharge an inspector of masonry, they have no power to suspend him without pay, and salary accruing during such period of suspension may be recovered.
(Following Mullen v. Mayor, 34 N. Y. State Rep., 913.) .
2. Same—Estoppel.
Where, however, such inspector, during a period of suspension, signs an agreement providing that in case of suspension his pay shall cease, he is thereby estopped from claiming pay during subsequent suspensions.
Exceptions ordered heard' at general term, in first instance, after direction by the court that the jury find a verdict in favor of the defendant
The action was brought to recover $1,360, with interest thereon, for salary alleged to be due the plaintiff as inspector of masonry on the new aqueduct during several periods of suspension.
It was claimed by appellant that the commissioners had no power to suspend him without pay. It appeared that on January 23, 1889, during a period of suspension, he signed an agreement reciting his appointment and providing in consideration thereof to faithfully discharge his duties, and that in case of discharge or suspension his pay should cease from the time of such suspension.
Hatch & Warren, for app’lt; William H. Clark, corporation counsel, for resp’t.
Since the trial in this action the main question of law raised by this appeal has been passed upon favorably to
p. 356
appellant’s contention by the general term of the supreme court, in Mullen v. The Mayor, etc., 34 N. Y. State Rep., 913. We have determined to accept this disposition of the question as correct for the purposes of this appeal. The agreement of January 23, 1889, raises a question which should be determined in favor of the respondent. The plaintiff, by his action in executing this agreement, which was not prohibited by law and did not relate to an illegal transaction, is estopped from claiming the invalidity of the agreement as to any period of suspension following its execution.
It follows that the defendant is liable only for compensation for such periods of suspension as preceded January 23, 1889.
The judgment should be reversed and a new trial ordered, with •costs to abide the event
Sedgwick, Oh. J., Truax and Dugro, JJ., concur.