Lethbridge v. Mayor of New York — 39 N.Y. St. Rep. 385

Majority

p. 385

Eugene F. Lethbridge, App’lt and Resp’t, v. The Mayor, etc., of New York, Resp’t and App’lt.

(New York Superior Court, General Term,

Filed July 2, 1891.)

Headnote

1. Municipal corporations—Whether power to remove includes POWER TO SUSPEND.

PlaintiS was appointed in 1886 a clerk in the Department of Public Works of the City of Hew York. He served until 1887, when he was suspended from his position by a written communication from the commissioner then in office. From that day he has not been allowed to render any service, although he applied repeatedly to he allowed to return to work. In an action to recover salary claimed to be due, Reid, that the power to remove or expel does not necessarily include the power to suspend, and the latter power may not be implied from the mere grant of the former, and in this case such power did not exist.

p. 386

2. Same—Money earned in other work, by officer unlawfully suspended, NOT TO BE DEDUCTED PROM SALARY.

Where an officer, entitled by law to a fixed annual salary, has been prevented for a time, through no fault of his own, from performing the duties of his office, and has during that time earned wages in another employment, he cannot be compelled, in an action to recover his unpaid salary, to deduct the amount so earned.

Cross-appeals taken from a judgment rendered in favor of the plaintiff and against the defendants upon a trial by the court without a jury.

B. C. Chetwood, for pl’ff; William H. Clark, counsel to the corporation, (Si dney J. Cowen, of counsel), for def’ts.

—The plaintiff was appointed May 15, 1886, a clerk in the department of public works of the city of New York at a salary of $1,000 per annum. He served until January 20, 1887, when he was suspended from his position by a written communication from the commissioner then in office. From that day he has not been allowed to do any work for the city, although he applied repeatedly to be allowed to return to work. The action is brought for the recovery of the salary for two years and about six months subsequent to his suspension. The evidence shows neither a discharge nor an abandonment or relinquishment of the office, and inasmuch as under the decision of the court of appeals in Gregory v. The Mayor, 113 N. Y., 416 ; 22 N. Y. State Rep., 703, and the decisions of the general terms of the supreme court and of this court in the aqueduct cases, I am compelled to hold that the power of suspension did not exist, the plaintiff was entitled to recover. The failure to make an appropriation constitutes no defense. All the questions presented on defendants’ appeal are discussed at length in the able opinion rendered by the learned judge below and it is not necessary to add anything to the reasons there assigned. The only error committed by the trial judge consists in the deduction of the sum of $600 earned by the plaintiff from temporary employments during the period for which salary was claimed. Under the decision of the court of appeals in Fitzsimmons v. The City of Brooklyn, 102 N. Y., 536 ; 2 N. Y. State Rep., 475, this deduction was unauthorized. The plaintiff is, therefore, entitled to prevail on his appeal.

The judgment should be amended by adding the $600 deducted, and, as so amended, affirmed, with costs to the plaintiff.

Dugro and Gildersleeve, JJ., concur.