Martin v. City of New York

CARDOZO, J. [1] The plaintiff sued for $22,166.64, with interest. The claim is for salary. It is not for damages for breach of the contract of employment. One of the questions in the case is whether the plaintiff abandoned his position. The plaintiff consented that the trial judge should determine any matter of fact involved in the decision of that question, and waived its submission to the jury. The trial judge thereupon dismissed the complaint. It would have been more logical to have directed a verdict; but the error of form is helpful rather than hurtful to the plaintiff. I do not think the plaintiff is entitled to prevail now by showing that there was a question of fact which, if it had not been for his waiver, should have been submitted to the jury. He cannot prevail unless, as a matter of law, there should have been a verdict in his favor. [2] Whatever the effect of the order of April 19, 1906, may have been in its inception, I am entirely clear in the conviction that at least after September 24, 1906, the plaintiff' could properly be found as a matter of fact, if not as a matter of law, to have abandoned his position, and to have acquiesced in his discharge. Whatever right he had from that time on was not a right to salary. His employment at the McGraw Building from October, 1906, to January, 1907; his change of residence to Boston; his employment by the Stone & Webster Corporation as superintendent of the Harvard power station from April, 1907, to January 22, 1908; his change of residence then to [10] West Norfolk, Va.; his employment by the Eustis Smelting Works at that place until May 22, 1908; his return then to Boston; his employment by J. B. Schaeffer & Co. till February 14, 1911; his resignation from that service to enter private practice; his failure to make any claim for reinstatement during all those years; his testimony that his failure was due to the fact that he had obtained outside employment on private work, and found it more congenial; and, finally, the fact that when in November, 1912, he made for the first time a claim for compensation, he limited it to the period beginning July 1, 1906, and ending September 24, 1906—all these circumstances demonstrate, it seems to me, that there was at the very least a question of fact whether he understood that his employment was at an end. So far as the determination of that question involved any element of fact, it was disposed of by the trial judge with the plaintiff’s consent, and submission of the question to the jury was waived. I am disposed to think that, even without the waiver, it could properly have been disposed of as a question of law. [3] The plaintiff’s right to salary during the brief period from July 1, 1906, to September 24, 1906, is more doubtful. If, however, the plaintiff’s claim is limited to that period, it is barred, I think, by the statute of limitations. If that is not so, however, it would not alter my conclusion. I incline to the view that there was enough evidence to present a question of fact as to whether the plaintiff did not understand, even before the end of September, that his position was abolished, and that he had been ousted from the service. The letter of August 3, 1906, has some significance upon that issue. The later acts which I have already mentioned reflect a certain light upon the plaintiff’s purpose and understanding in the earlier stages of the controversy. Indeed, his anxiety to be transferred to the water supply department is hardly explicable upon any theory except his recognition of the fact that his old position had been abolished. The fact that the president of the borough wrongfully refused to make the transfer did not, as a matter of law, keep the old position alive. The claim for salary during the brief period from July 1st to September 24th is, however, a comparatively insignificant part of the entire claim. It involves the consideration, not so much of general principles of law, as of the rights of the parties under a very peculiar state of facts—a state of facts not likely to be repeated. It is not of such a nature as to justify the allowance of an appeal. Sciolina v. Erie Preserving Co., 151 N. Y. 50, 45 N. E. 371. I do not now determine whether the plaintiff’s action is one for services within the meaning of subdivision 2 of section 191 of the Code of Civil Procedure. The application for leave to appeal to the Court of Appeals is therefore denied.