Donnelly v. City of New York

54 A.D. 155, 66 N.Y.S. 411

Opinion

Jenks, J.:

We think that the language of subdivision 2 of section 191 of the Code of Civil Procedure, with reference to actions to recover wages, salary or compensation for services, refers only to cases where the claim for such wages, salary or compensation arises out of a contract relation, and that the subdivision does not apply to a case like this, where the compensation is determined by statute as an incident to a public office. In Boyd v. Gorman (157 N. Y. 365, 368) the court, per Yann, J., discussing the incorporation of the subdivision in question, say : “ Thus we have progressive action toward the single object of relieving a court overburdened with work. Thé legislature, in the exercise of its power to restrict appeals, wisely selected those classes of actions in which the law has been so well settled for so long a period as to make a second appeal unnecessary, except in rare instances involving new questions, when permission can readily - be obtained.” Actions of character similar to this do not present the reason given by the court for the restriction, inasmuch as they require the construction of express statutory provisions rather than the application of well-settled general principles of law.

For these reasons we think that the motion should be denied as not necessary-in this case.

Motion denied, without costs.

All concurred.

Motion for leave to appeal to the Court of Appeals denied.