People ex rel. Grimshaw v. Prendergast

135 N.Y.S. 164

• Court: New York Supreme Court
• Decided: February 2, 1909
• Status: Published

Opinion

MADDOX, J.

Relator held a definite position, and his salary was an incident thereto; his tenure being protected by statute. He was subject to removal and suspension for cause, and until removed or suspended. in manner as provided by statute, was entitled to his salary, but subject, however, to a ratable deduction therefrom, in the discretion of the respondent, fot any absence without leave. He was not removed or suspended for cause. Because of illness he was absent from his office, and failed to perform his duties for several months prior to December 17, 1908, with the leave and permission of the respondent as he claims. About November 5, 1908, the deputy register, in writing, notified the relator that his “leave of absence is extended with pay to include November 16, 1908.” After “that date” that he would “be suspended from pay until such time as” he returned “to work,” and about November 7, 1908, relator received a like written notice from the respondent.

As a matter of fact, his absence from November 17th and until his return was without leave. That is made plain from the notices given to him; his “leave of absence” having been extended to November 16th only. It is not made to appear that he was suspended, though he was advised that he would be if his absence from duty was continued after that date.

By the charter (section 1543) the respondent, as a county officer, had the power to make a ratable deduction from relator’s salary on account of his absence from duty from November 17th to December 17th; such absence from duty being “without leave,” and therefore relator has shown no clear legal right to the writ sought.

Motion denied.