Kearney v. United States

Court of Claims

Kearney v. United States

65 Ct. Cl. 683, 1928 U.S. Ct. Cl. LEXIS 399, 1928 WL 2907

CourtUnited States Court of Claims

DecidedMay 28, 1928

DocketNo. D-804

StatusPublished

This text of 65 Ct. Cl. 683 (Kearney v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kearney v. United States, 65 Ct. Cl. 683, 1928 U.S. Ct. Cl. LEXIS 399, 1928 WL 2907 (cc 1928).

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Opinion

Graham, Judge,

delivered the opinion of the court:

Plaintiff is suing to recover $342.36, which he alleges is due him as increased pay for services during his provisional assignment to the rank of ensign, U. S. Naval Reserve Force, from September 19, 1919, to February 13, 1920. He was assigned the said rank on July 26, 1918, and accepted it on that date. He was not examined by a board of three naval officers nor by a board of medical officers, as required by the act of August 29,1916, 39 Stat. 556, 587, 588. While serving under the said assignment at the naval air station, Pensacola, Fla., he was designated a naval aviator and detailed for duty as such.

During the period from September 19, 1919, to October 31, 1919, he received an increase in pay for the performance of flying duty in the sum of $99.17, but later this amount was checked against other sums due him. From November 1, 1919, to February 13, 1920, plaintiff received no increase in pay for the performance of flying duty. If plaintiff is entitled to 50 per cent increase in pay for the periods mentioned, under the act of March 3, 1915, 38 Stat. 939, he is entitled to recover the amount of $342.36.

Thffi case is ruled by the case of Beeman v. United States, D-129, decided by this court April 16, 1928. However, $99.17 of the amount claimed was once paid to the plaintiff and later checked against other sums due him. As to this he is entitled to recover. See Royer v. United States, 59 C. Cls. 199, 268 U. S. 394, and the Beeman case, supra.

[686]*686Judgment should be entered for plaintiff, and it is so ordered.

The counterclaim filed by defendant has been withdrawn.

GeeeN, Judge; Moss, Judge; and Booth, Chief Justice, concur.

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Graham, Judge,

delivered the opinion of the court:

Plaintiff is suing to recover $342.36, which he alleges is due him as increased pay for services during his provisional assignment to the rank of ensign, U. S. Naval Reserve Force, from September 19, 1919, to February 13, 1920. He was assigned the said rank on July 26, 1918, and accepted it on that date. He was not examined by a board of three naval officers nor by a board of medical officers, as required by the act of August 29,1916, 39 Stat. 556, 587, 588. While serving under the said assignment at the naval air station, Pensacola, Fla., he was designated a naval aviator and detailed for duty as such.

During the period from September 19, 1919, to October 31, 1919, he received an increase in pay for the performance of flying duty in the sum of $99.17, but later this amount was checked against other sums due him. From November 1, 1919, to February 13, 1920, plaintiff received no increase in pay for the performance of flying duty. If plaintiff is entitled to 50 per cent increase in pay for the periods mentioned, under the act of March 3, 1915, 38 Stat. 939, he is entitled to recover the amount of $342.36.

Thffi case is ruled by the case of Beeman v. United States, D-129, decided by this court April 16, 1928. However, $99.17 of the amount claimed was once paid to the plaintiff and later checked against other sums due him. As to this he is entitled to recover. See Royer v. United States, 59 C. Cls. 199, 268 U. S. 394, and the Beeman case, supra.

[686]*686Judgment should be entered for plaintiff, and it is so ordered.

The counterclaim filed by defendant has been withdrawn.

GeeeN, Judge; Moss, Judge; and Booth, Chief Justice, concur.

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Bluebook (online)

65 Ct. Cl. 683, 1928 U.S. Ct. Cl. LEXIS 399, 1928 WL 2907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kearney-v-united-states-cc-1928.

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