Lethbridge v. Mayor of New York

The Superior Court of New York City

Lethbridge v. Mayor of New York

39 N.Y. St. Rep. 385

CourtThe Superior Court of New York City

DecidedJuly 2, 1891

StatusPublished

This text of 39 N.Y. St. Rep. 385 (Lethbridge v. Mayor of New York) is published on Counsel Stack Legal Research, covering The Superior Court of New York City primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lethbridge v. Mayor of New York, 39 N.Y. St. Rep. 385 (N.Y. Super. Ct. 1891).

Pincite

Opinion

Freedman, J.

—The plaintiff was appointed May 15, 1886, a clerk in the department of public works of the city of New York at a salary of $1,000 per annum. He served until January 20, 1887, when he was suspended from his position by a written communication from the commissioner then in office. From that day he has not been allowed to do any work for the city, although he applied repeatedly to be allowed to return to work. The action is brought for the recovery of the salary for two years and about six months subsequent to his suspension. The evidence shows neither a discharge nor an abandonment or relinquishment of the office, and inasmuch as under the decision of the court of appeals in Gregory v. The Mayor, 113 N. Y., 416; 22 N. Y. State Rep., 703, and the decisions of the general terms of the supreme court and of this court in the aqueduct cases, I am compelled to hold that the power of suspension did not exist, the plaintiff was entitled to recover. The failure to make an appropriation constitutes no defense. All the questions presented on defendants’ appeal are discussed at length in the able opinion rendered by the learned judge below and it is not necessary to add anything to the reasons there assigned. The only error committed by the trial judge consists in the deduction of the sum of $600 earned by the plaintiff from temporary employments during the period for which salary was claimed. Under the decision of the court of appeals in Fitzsimmons v. The City of Brooklyn, 102 N. Y., 536; 2 N. Y. State Rep., 475, this deduction was unauthorized. The plaintiff is, therefore, entitled to prevail on his appeal.

The judgment should be amended by adding the $600 deducted, and, as so amended, affirmed, with costs to the plaintiff.

Dugro and Gildersleeve, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Freedman, J.

—The plaintiff was appointed May 15, 1886, a clerk in the department of public works of the city of New York at a salary of $1,000 per annum. He served until January 20, 1887, when he was suspended from his position by a written communication from the commissioner then in office. From that day he has not been allowed to do any work for the city, although he applied repeatedly to be allowed to return to work. The action is brought for the recovery of the salary for two years and about six months subsequent to his suspension. The evidence shows neither a discharge nor an abandonment or relinquishment of the office, and inasmuch as under the decision of the court of appeals in Gregory v. The Mayor, 113 N. Y., 416; 22 N. Y. State Rep., 703, and the decisions of the general terms of the supreme court and of this court in the aqueduct cases, I am compelled to hold that the power of suspension did not exist, the plaintiff was entitled to recover. The failure to make an appropriation constitutes no defense. All the questions presented on defendants’ appeal are discussed at length in the able opinion rendered by the learned judge below and it is not necessary to add anything to the reasons there assigned. The only error committed by the trial judge consists in the deduction of the sum of $600 earned by the plaintiff from temporary employments during the period for which salary was claimed. Under the decision of the court of appeals in Fitzsimmons v. The City of Brooklyn, 102 N. Y., 536; 2 N. Y. State Rep., 475, this deduction was unauthorized. The plaintiff is, therefore, entitled to prevail on his appeal.

The judgment should be amended by adding the $600 deducted, and, as so amended, affirmed, with costs to the plaintiff.

Dugro and Gildersleeve, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

39 N.Y. St. Rep. 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lethbridge-v-mayor-of-new-york-nysuperctnyc-1891.

Opinion

Related

Cite This Page — Counsel Stack