Downey v. City of New York

Appellate Terms of the Supreme Court of New York

Downey v. City of New York

84 Misc. 435, 146 N.Y.S. 145

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 15, 1914

StatusPublished

Cited by2 cases

This text of 84 Misc. 435 (Downey v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Downey v. City of New York, 84 Misc. 435, 146 N.Y.S. 145 (N.Y. Ct. App. 1914).

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Opinion

Guy, J.

Plaintiff, a telephone operator in the public works department in this city, sues to recover salary at the rate of $750 per annum from May 10 to November 30, 1912, while he was absent, without leave, [436]*436because of illness. Plaintiff suffered from tuberculosis to such an extent that he was unable to do any work from May 1, 1912, and he is still suffering therefrom, and was and still is a patient at the state sanatorium known as Seton Hall at Spuyten Duyvil.

In May, 1912, plaintiff’s wife and physician notified his superior of his condition. He was absent from his work from May 1 to November 30, 1912, by reason of such illness. On November 30, 1912, he was duly notified of his discharge, by reason of a reduction in force. For the ten days from May 1 to May 10, 1912, during which plaintiff was absent from duty while he had sick leave, he was paid. After May tenth he had no leave, and his name was, by his superior’s, order, duly marked on the pay rolls “ absent without leave.” Plaintiff was a city employee, not a city officer. Where a city employee is absent without leave on account of illness, his superior may deduct, and in the case at bar did deduct, his salary during the term of such absence without leave. Greater N. Y. Charter, § 1543; People ex rel. Grimshaw v. Prendergast, 135 N. Y. Supp. 164, 165; affd., 132 App. Div. 937; affd., 197 N. Y. 538; Reilly v. City of New York, 139 N. Y. Supp. 718.

A city employee absent from duty without leave cannot recover salary without service.

In the Brooklyn special term cases cited by appellant the employee was absent with leave.

Seabuby and Delany, JJ., concur.

Judgment affirmed, with costs.

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Guy, J.

Plaintiff, a telephone operator in the public works department in this city, sues to recover salary at the rate of $750 per annum from May 10 to November 30, 1912, while he was absent, without leave, [436]*436because of illness. Plaintiff suffered from tuberculosis to such an extent that he was unable to do any work from May 1, 1912, and he is still suffering therefrom, and was and still is a patient at the state sanatorium known as Seton Hall at Spuyten Duyvil.

In May, 1912, plaintiff’s wife and physician notified his superior of his condition. He was absent from his work from May 1 to November 30, 1912, by reason of such illness. On November 30, 1912, he was duly notified of his discharge, by reason of a reduction in force. For the ten days from May 1 to May 10, 1912, during which plaintiff was absent from duty while he had sick leave, he was paid. After May tenth he had no leave, and his name was, by his superior’s, order, duly marked on the pay rolls “ absent without leave.” Plaintiff was a city employee, not a city officer. Where a city employee is absent without leave on account of illness, his superior may deduct, and in the case at bar did deduct, his salary during the term of such absence without leave. Greater N. Y. Charter, § 1543; People ex rel. Grimshaw v. Prendergast, 135 N. Y. Supp. 164, 165; affd., 132 App. Div. 937; affd., 197 N. Y. 538; Reilly v. City of New York, 139 N. Y. Supp. 718.

A city employee absent from duty without leave cannot recover salary without service.

In the Brooklyn special term cases cited by appellant the employee was absent with leave.

Seabuby and Delany, JJ., concur.

Judgment affirmed, with costs.

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84 Misc. 435, 146 N.Y.S. 145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/downey-v-city-of-new-york-nyappterm-1914.

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