McEvoy v. City of New York

56 A.D. 222

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1900
• Status: Published

Opinion

Patterson, J.:

The plaintiff, a watchman in the employ of the city of New York in the Croton aqueduct division of the water supply department, sued to recover wages he claimed to be due him for a fixed period, andan his complaint set forth that he was appointed to that position in the year 1888, and accepted the same; that he performed the duties thereof until February, 1899 that he has since, and at the time of the institution of the action, still occupied the same position; that his wages were two dollars and fifty cents a day, due Mm so long as he held the position, and that he received payment thereof until the 3d of January, 1899; that on the 4th of April, 1899, the Supreme Court of the State of New York made an order and in pursuance thereof issued a writ of mandamus, directed to the commissioner of water supply of the city of New York and to the deputy commissioner of the borough of Manhattan in the city of New York, requiring them to certify to the comptroller of the city of New York upon the payroll of the department of water supply that the plaintiff was entitled to $2.50 a day from January 3,1899, to May 18,1899, in the aggregate $337.50 for 135 days, and that the commissioner and deputy commissioner in obedience to the writ of mandamus did so certify, but the comptroller of the city of New York has refused to pay any part of the amount so certified except $22.50 ; that the claim of the plaintiff was duly presented to the comptroller of the city of New York, who has neglected and refused to pay the same. Annexed to the complaint and set out m extenso are copies of the order for the mandamus and of the writ. The answer of the defendant admits the original appointment of the plaintiff as a watchman as alleged in the complaint, but on information and belief denies that the plaintiff occupied that position continuously or during all of the times since he was so appointed, or that he has rendered such services for the defendant during all of said time; but on the contrary, on information and belief that he was removed from his said position as watchman on the 4th of January, 1899, and did not act as such watchman or render any services thereafter as said watchman until after the 8th of May, 1899, when he was restored to his position of watchman, and that during all of the time between the 4th of January, 1899, and the 8th of May, 1899, another person, duly appointed and employed by the defendant, occupied said position and discharged the said duties of watchman, being the duties of the same position, which the plaintiff was before and afterward employed to discharge, and that before the plaintiff was restored to said position of watchman, the defendant, in good faith, paid the person so discharging the duties of watchman between January 4, 1899, and the 8th day of May, 1899¿ in full for services at the rate of $2.50 per day. The answer then contains this averment, namely: “ It alleges the facts to be as above stated, and denies e.ach and every allegation to the contrary in said - complaint contained.”

It is now urged that the plaintiff was not entitled to a verdict because of a failure to prove the allegations of the complaint respecting the issuance of the order for the mandamus and the writ. It was unnecessary for the plaintiff to do -so under the pleadings. There is no denial of the allegations of the. complaint relating to z them. The answer denies merely each and every allegation of the • complaint contrary to what is alleged in the answer. It is not alleged in the answer that the order was not made and the writ of mandamus not issued. There is. no general denial in the answer and the quoted allegation put nothing in issue respecting the adjudged rights of the plaintiff under the writ of mandamus.. By the adjudication made when the Writ was issued it was determined that the plaintiff was entitled to his position as watchman and to his salary, and the requirement was made that his name be put upon- the payroll in order that he might receive his salary. In the face of that .adjudication we do not see how the plaintiff’s right to recovery can be questioned. But even if that were not so, the defendant failed to prove that the plaintiff’s position from the 4th of January, 1899, to the 8th of' May, 1899, was filled by another appointee, to whom the Wages or salary of that position was paid, or who was paid for rendering the same service. One of the defendant’s witnesses testifies that during this interval another man, subsequently identified as one Coogan, did the same class of work that the plaintiff was engaged to do, that is, the work of a watchman; that there were seven Watchmen altogether, and that after the plaintiff’s removal seven persons were engaged in doing the' same work, and that each of those persons was paid by the city.. But this witness was not willing to swear that there were more than six watchmen after the plaintiff’s removal. There were seven men who did the work of watchmen, but one of them may have been under some other title. Another witness, who was keeper of the reservoir (at which place the plaintiff had always worked), swore there were seven men, including McEvoy, who were watchmen at that place, and that Coogan was working there before and after the plaintiff was removed; that there were only six watchmen after the plaintiff went away; that Coogan was doing the same work, but this same witness, in answer to a direct question by the court as to how many men patrolled the reservoir before the plaintiff was removed, gave the following answer : “ There were eight before and seven after-wards.” This witness also stated that before McEvoy left there were seven watchmen, and that the eighth person was patrolling, but that he did not call him a watchman; that he was not appointed .as a watchman; that he was an assistant foreman.

The proof shows there were eight persons doing patrolling or watching before January fourth; that between January 4 and May 18, 1899, there were only seven persons, and it is impossible to infer from this evidence that the plaintiff’s position as' watchman was filled by somebody else and. that the salary as such was paid to that ■other person. There is no evidence that any new man was appointed, and the plaintiff was entitled to the direction of a verdict.

The judgment should be affirmed, with costs.

Rumsey, O’Brien and McLaughlin, JJ., concurred; Van Brunt, P. J., concurred in result.

Judgment affirmed, with costs.