Cook v. Mayor, Aldermen & Commonalty

Headnote

Municipal corporation—Employe—Compensation. •

Persons in subordinate employments, after being “ relieved from duty,” cannot recover from the municipality pay as upon full performance of service.

Appeal from a judgment dismissing the complaint upon the merits.

Action to recover the sum of $3,350, alleged to be due plaintiff for salary as guard in the penitentiary at Blackwell’s island from July 1, 1886, to February 1, 1892.

The following is the opinion of the judge below :

McAdam, J.—The plaintiff was appointed one of the guards at Blackwell’s island on January 8, 1885, at $550 a year, which rate was subsequently increased to $600. The plaintiff performed services until June 29, 1886, when he was “relieved from duty.” He received pay till June 30, 1886, which included all services actually rendered. The action is to recover the stipulated compensation from that time, on the legal fiction that, although he performed no services and had no duties, he was never actually discharge from the place; hence, his right to pay continued to run ad infinitum, and this claim is based upon the cases of Gregory v. Mayor, etc., 113 H. Y. 416; 22 St. Bep. 703, and Emmitt v. Same, 128 H. Y. 117; 38 St. Bep. 907. Those decisions have certainly invited much litigation, but the principles decided thereby were never intended to embrace the horde of ¿claims which have been made under them. The plaintiff alleges in his complaint and proved at the trial that he was “relieved from duty,” which impliedly assumes that he was legally so relieved, and the term “relieved from duty,” as applied to the character of his employment, is tantamount to “discharge,” for it meant that and nothing less. The right to pay in such an employment is inseparable from duty, and when the plaintiff was relieved from the exercise of the earning power he was effectually discharged from the service altogether. Web. Die. He acted on this assumption when he sought a civil service examination for a position on the police force, for in his written application he described his previous. employment as “guard,” etc., and gave as the cause of “leaving” relieved from duty. It was never intended by any adjudicated case to hold that persons in subordinate employments like that of plaintiff’s should, after being “relieved from duty,” recover from the municipality pay as upon full performance of service, nor is there any legal warrant for any such interpretation of the law. The rule (to which there are not many exceptions) is “no work, no pay,” founded on the just principle that the one is a just equivalent for the other. The conclusion reached is in accord with the rulings in Gore v. Mayor, etc., H. Y. L. J., Feb. 9, 1893, and Kelly v. Same, 54 St. Bep. 99, in both of which cases the right of recovery was denied, though the claims were entitled to as much, if not more, consideration than the one in suit. It follows that there must be judgment for the defendant.