Ryan v. Mayor of New York — 66 N.Y. St. Rep. 853

Majority

p. 853

Kate Ryan, Administratrix, etc., Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt.

(Supreme Court, General Term, First Department,

Filed April 11, 1895.)

Headnote

Master and servant—Discharge.

Where the plaintiff’s intestate, who had been appointed an inspector of masonry by the defendant, performed his duties as such for a short period when the division engineer informed the chief engineer that he had ordered such intestate to report under suspension, whereupon the chief engineer communicated with the board of commissioners, which a few days later demanded the resignation of the intestate, who never afterwards performed, or offered to perform, any work, the question whether the demand for his resignation is equivalent to a discharge is one for the jury.

Appeal from a judgment entered on a verdict in favor of plaintiff directed by the court, and from an order denying a motion for a new trial.

J. T. Malone, for app’lt; E. G. Delaney, for resp’t.

This action was brought to recover 'the sum of $3,120, alleged to be due the plaintiff’s intestate for services performed as inspector of masonry upon the new aqueduct from October 24, 1887, to December 24, 1889. The complaint alleges the appointment by the aqueduct commissioners of the city of New York on the 8th of June, 1887, of the said Ryan as inspector of masonry, to supervise and inspect the work of construction of the new aqueduct, at a salary of $120 per month; and, further, that the plaintiff entered upon said employment, and faithfully performed all the duties and services required of him, from the 8th day of June, 1887, to the 24th day of December, 1889, when he was dismissed: that there was paid to him for his services a certain sum; and that there remained due to him the sum of $3,120. The answer admitted the appointment, but denied that Ryan had performed services from the 8th of June, 1887, to 24th December, 1889, and alleged the discharge of said Ryan on the 24th of October, 1887, and that he had performed no work since that time.

The evidence showed the appointment as admitted, and that Ryan served from the time of such appointment until the 24th of October, 1887, and had been paid for such services. On the 25th of October, 1887, the division engineer wrote to the chief engineer that he had ordered said Ryan to report to him under suspension. Thereupon the chief engineer communicated with the board of aqueduct commissioners, and on the 28th of October, 1887,' the resignation of Ryan was demanded from him, and he ceased thereafter to do any work uqon the aqueduct. There is evidence that since this time Ryan never reported for duty, although one witness upon the part of the plaintiff swore to having seen him subsequently upon the work. Ryan, however, made repeated applications for reinstatement, which applications were denied.- Upon this state of the evidence, the defendant asked to go to the jury upon the question as to whether it was the understanding of both of these parties that the communication to Ryan was his discharge.

p. 854

The court denied this motion, and directed a verdict for the plaintiff, which was excepted to. It seems to us that this was error. The right to recover under a contract for services depends upon the rendition of those services, or upon an offer to serve and a refusal to accept the same. We have been unable to find in this case any evidence whatever upon the part of Ryan that he offered his services subsequent to his claimed discharge. All his efforts were to be reinstated. From this circumstance the jury would have a right to infer that Ryan understood, and the aqueduct commissioners intended, that their communication should operate as a discharge. The fact of their subsequent resolution dismissing Ryan from service was evidently brought about by certain decisions which had been made respecting suspensions, and offers but a very.slight clue as to the intention with which the previous communications were made. As already suggested, it seems to be evident that Ryan understood, when his resignation was called for, that his place was vacant,- as it does not appear that he tendered any services at all thereafter, but made continual applications for reinstatement. We think that the defendant had a right to go to the jury for the purpose of having them determine from this evidence as to what was understood by these parties by the action which had been taken.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.

All concur.