Francisco v. Mayor of New York

Rumsey, J.: On the 27th day of June, 1888, the plaintiff was appointed by the aqueduct commissioners as inspector of masonry upon the work at a salary of $120 a month. He continued to perform that work until the 27th day of November, 1888, at which time, pursuant to a resolution of the commissioners, there was served upon him a notice that he was suspended for lack of work, without pay from that date. From that time on, he did no work for the aqueduct commissioners. He brought this action to recover his wages from [23] the date of his suspension to the 20th day of March, 1889, at which time he says he was formally discharged. The defendant insisted that the suspension without pay, on the 27th of Hovember, 1888, was, in legal effect, a discharge, and that the plaintiff, having done no work for it since, was not entitled to recover any pay. This contention of the defendant was overruled, and a verdict was ordered for the plaintiff for the four months’ salary, upon which ¡judgment was entered and this appeal was taken. The exception to the direction of the court ordering the judgment brings up for review in this court the question of law arising upon that exception. (Code Civ. Proc. § 1346.) It is unnecessary to enter into any discussion of the legal proposition thought to be involved. The precise question has already been before the courts more than once, and upon each occasion it was held that this resolution of the aqueduct commission suspending an inspector from work without pay operated as a discharge, and that he was not entitled to recover any salary after that time. (Kelly v. The Mayor, 70 Hun, 208; McNamara v. The Mayor, 152 N. Y. 228.) These cases are decisive upon this appeal, and, following them, the judgment for the plaintiff must be reversed, with costs to the appellant to abide the event. A new trial ordered. Tan Brunt, P. J., Barrett, O’Brien and Ingraham, JJ.,concurred. Judgment reversed and new trial ordered, costs to appellant to abide event.