Spencer v. City of New York

Appellate Division of the Supreme Court of New York

Spencer v. City of New York

279 A.D. 1021, 111 N.Y.S.2d 637, 1952 N.Y. App. Div. LEXIS 5668

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 14, 1952

StatusPublished

Cited by2 cases

This text of 279 A.D. 1021 (Spencer v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Spencer v. City of New York, 279 A.D. 1021, 111 N.Y.S.2d 637, 1952 N.Y. App. Div. LEXIS 5668 (N.Y. Ct. App. 1952).

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Opinion

Judgment on the pleadings (Rules Civ. Prac., rule 112) should not be granted where material allegations of the complaint are denied by the answer. A cost of living bonus may be included in the phrase, “ salary or compensation ”, as used in subdivision 1 of section 245 of the Military Law, but only when such bonus has been lawfully awarded or appropriated. The extracts from the resolutions of the appellant’s board of estimate, together with the arguments presented by appellant, are persuasive that there was no cost of living bonus awarded, but the persuasion is merely prima facie. Respondent is entitled to an opportunity to establish the material allegations of the complaint which have been denied. Appellant concedes that the respondent is entitled to the ordinary statutory increments to salary. Nolan, P. J., Carswell, Johnston, Adel and Schmidt, JJ., concur.

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Judgment on the pleadings (Rules Civ. Prac., rule 112) should not be granted where material allegations of the complaint are denied by the answer. A cost of living bonus may be included in the phrase, “ salary or compensation ”, as used in subdivision 1 of section 245 of the Military Law, but only when such bonus has been lawfully awarded or appropriated. The extracts from the resolutions of the appellant’s board of estimate, together with the arguments presented by appellant, are persuasive that there was no cost of living bonus awarded, but the persuasion is merely prima facie. Respondent is entitled to an opportunity to establish the material allegations of the complaint which have been denied. Appellant concedes that the respondent is entitled to the ordinary statutory increments to salary. Nolan, P. J., Carswell, Johnston, Adel and Schmidt, JJ., concur.

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Bluebook (online)

279 A.D. 1021, 111 N.Y.S.2d 637, 1952 N.Y. App. Div. LEXIS 5668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spencer-v-city-of-new-york-nyappdiv-1952.

Opinion

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