Wood v. Mayor of New York

The Superior Court of New York City

Wood v. Mayor of New York

23 Jones & S. 230

CourtThe Superior Court of New York City

DecidedJanuary 3, 1888

StatusPublished

This text of 23 Jones & S. 230 (Wood 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

Wood v. Mayor of New York, 23 Jones & S. 230 (N.Y. Super. Ct. 1888).

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Opinion

By the Court.—Sedgwick, Ch., J.

plaintiff had been a foreman in the Fire Department. He was charged with some violation of duty, was tried on that charge by the committee on discipline appointed by the Board of Fire Commissioners, found guilty, and on September 11,1872, sentenced to be retired from the service of the department, on an annuity of $150, to date from the 12th instant, and thereafter, on September 11, 1872, by resolution of the Board he was retired from active service in the department, on an annuity of $150, to date from the 12th inst.” He acquiesced in this until May 21, 1873, when he applied to be assigned to duty, “in my former position,” in the department. In March, 1873, he applied to the board for a part of his annuity, and was informed that the law did not justify his having, or being paid any annuity.

He now claims for his salary, during his retirement, excepting as to two months following September 12, 1872, for which he was paid. The circumstances of his being paid for these two months do not appear.

The claim is founded upon the assumption that for the time for which he asks, he was an officer, and therefore entitled by law to the salary attached to the office.

I am of opinion that he was not an officer in fact. Rightly or wrongly he had been removed from office. To entitle himself to the salary, it was necessary that in fact, by legal proceedings or otherwise, he should have been reinstated.

Judgment affirmed, with costs.

Freedman and Truax, JJ., concurred.

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By the Court.—Sedgwick, Ch., J.

plaintiff had been a foreman in the Fire Department. He was charged with some violation of duty, was tried on that charge by the committee on discipline appointed by the Board of Fire Commissioners, found guilty, and on September 11,1872, sentenced to be retired from the service of the department, on an annuity of $150, to date from the 12th instant, and thereafter, on September 11, 1872, by resolution of the Board he was retired from active service in the department, on an annuity of $150, to date from the 12th inst.” He acquiesced in this until May 21, 1873, when he applied to be assigned to duty, “in my former position,” in the department. In March, 1873, he applied to the board for a part of his annuity, and was informed that the law did not justify his having, or being paid any annuity.

He now claims for his salary, during his retirement, excepting as to two months following September 12, 1872, for which he was paid. The circumstances of his being paid for these two months do not appear.

The claim is founded upon the assumption that for the time for which he asks, he was an officer, and therefore entitled by law to the salary attached to the office.

I am of opinion that he was not an officer in fact. Rightly or wrongly he had been removed from office. To entitle himself to the salary, it was necessary that in fact, by legal proceedings or otherwise, he should have been reinstated.

Judgment affirmed, with costs.

Freedman and Truax, JJ., concurred.

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Bluebook (online)

23 Jones & S. 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wood-v-mayor-of-new-york-nysuperctnyc-1888.