Sheehan v. Mayor of New York

McAdam, J. The plaintiff was employed as a laborer by the -department of parles ¡at $75 per month, and sues to recover what he terms a balance of salary as an incident to his officé. The difficulty is that the plaintiff held no office, but Was merely a menial employee (Sullivan v. Mayor, 53 N. Y. 652; Costello v. Mayor, 63 id. 48; Olmstead v. Mayor, 42 N. Y. Supr. Ct. 488; Meyers v. Mayor, 69 Hun, 291), so that the rule that salary is an incident is inapplicable. This leads to the inquiry • whether the plaintiff is entitled to recover on any other theory. On December 22, 1889, the day on which the plaintiff’s claim be [601] gins, he directed to and served on the commissioners of parks a paper asking that he be granted a leave of absence for two weeks without pay. The request was officially acted upon, and leave granted on the same day. ■ The plaintiff sent this request to the board because he was informed by the superintendent of parks that refusal to do so might be followed by discharge. At the end of every two weeks thereafter, during the period for which ■ salary is claimed, a similar request for leave of absence without pay was made by the plaintiff and granted in like manner. The plaintiff was finally discharged, and subsequently made claim for compensation for the off weeks or time during which no services were rendered, and the recovery sought is for that period, founded on the isolated fact that during the interval he reported to the superintendent. This is not sufficient. The right of recovery is apparently based on Gregory v. Mayor, 113 N. Y. 416, and Emmitt v. Mayor, 128 id. 117; but these cases are inapplicable to an ordinary employment like the plaintiff’s. See Cook v. Mayor, 9 Misc. Rep. 338; affirmed, 150 N. Y. 578; Gore v. Mayor, 30 N. Y. Supp. 405; Meyers v. Mayor, supra. The suggestion of the superintendent, that unless the plaintiff asked for leave of absence he might be discharged, does not'amount to duress. Doyle v. Rector, etc., 133 N. Y. 372, 377; Day v. Studebaker Co., 13 Misc. Rep. 320. The appropriation for Momingside park, in which the plaintiff was employed to work, was exhausted December 23, 1889, and this circumstance, apart from any other, gave the defendant the right to discharge him. Lethbridge v. Mayor, 133 N. Y. 232. There must be judgment for the defendant. Judgment for defendant.