THE

New York Supplement.

VOLUME 24.

(70 Hun, 208.)

KELLY v. MAYOR, ETC., OF CITY OF NEW YORK.

(Supreme Court, General Term, First Department. June 30, 1893.)

MUNICIPAL CORPORATIONS-DISMISSAL OF OFFICER-SUSPENSION.

*

A notice by the aqueduct commissioners to an inspector of masonry, that, "owing to lack of work, * * you are hereby suspended from November 16th, without pay, until such time as your services may be required," shows an intention to dismiss, and not merely to suspend, notwithstanding three months later the commissioners, evidently as a precautionary measure, passed a resolution that the inspector's services were no longer required, and that he was therefore dismissed. Barrett, J., dissenting. Gregory v. Mayor, etc., 21 N. E. Rep. 119, 113 N. Y. 416; Emmitt v. City of New York, 28 N. E. Rep. 19, 128 N. Y. 117, distinguished.

Appeal from circuit court, New York county.

Action by John P. Kelly against the mayor, aldermen, and commonalty of the city of New York to recover salary as inspector of masonry. From a judgment entered on the dismissal of the complaint, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.

Edward G. Delaney, (Lyman E. Warren, of counsel,) for appellant.

William H. Clark, (Sidney J. Cowen, of counsel,) for respondent.

VAN BRUNT, P. J. This action was brought to recover salary alleged to be due to the plaintiff. On the 24th of August, 1888, the plaintiff was appointed by the aqueduct commissioners an inspector of masonry, to supervise and inspect the work of the construction of the new aqueduct, on a salary of $120 per month. Plaintiff entered upon his employment, and continued to discharge the duties of his office, from that date to the 16th of November, 1888, when he received the following notice: "Owing to lack of work, as reported by Division Engineer Gowan, you are hereby v.24 N.Y.s.no.1-1

suspended from November 16th, without pay, until such time as your services may be required." On the 6th of February, 1889, about three months afterwards, the commissioners passed a resolution that, owing to the near completion of the work, the services of "the following inspectors" would be no longer required, and they were therefore dismissed from the employment of the aqueduct commissioners. The list included the name of the plaintiff.

This action was brought to recover salary from November 16, 1888, the time of the alleged suspension, to February 12, 1889, and is based upon the authorities of Gregory v. Mayor, etc., 113 N. Y. 416, 21 N. E. Rep. 119, and Emmitt v. City of New York, 128 N. Y. 117, 28 N. E. Rep. 19, in which it was held that parties holding offices in the various departments could not be suspended without pay, but, in order that their right to salary should be terminated, they should be dismissed. The full force of these decisions, however, seems to have been modified by subsequent cases in which the intent of the parties, and their understanding, seem to control the language of the alleged suspension. For example, in the case of Lethbridge v. City of New York, 133 N. Y. 233, 30 N. E. Rep. 975, it was held that a suspension in consequence of insufficient appropriation, and a necessary reduction of force, was equivalent to a dismissal. So, in the case at bar, it seems to us that a suspension upon the ground of lack of work shows an intention to dismiss, and not merely to suspend; and the action of February 6, 1889, does not, in our judgment, in any way qualify this construction. Such action was undoubtedly caused by the fact of the condition of the decision in Gregory v. Mayor, etc., which had been decided by the general term in October, 1887, and was pending in the court of appeals, and actually argued on the 28th of March, 1889; the resolution in question being passed in order to prevent any possible continuance of liability upon the part of the city if a mistake had been previously made. We think a reasonable construction of the suspension was that the plaintiff's services. were no longer required, and that has been held equivalent to a dismissal. The claim made upon the part of the counsel for the respondent, that there was no proof of the proper appointment of the plaintiff to his position as inspector, comes with rather ill grace, in view of the fact that such appointment is admitted in the pleadings. The judgment should be affirmed, with costs.

FOLLETT, J., concurs

BARRETT, J., (dissenting.) Gregory v. Mayor, etc., 113 N. Y. 416, 21 N. E. Rep. 119, and Emmitt v. City of New York, 128 N. Y. 117, 28 N. E. Rep. 19, while I think it is plainly distinguishable from Lethbridge v. City of New York, 133 N. Y. 232, 30 N. E. Rep. 975, and Wardlaw v. Mayor, etc., (N. Y. App.) 33 N. E. Rep. 140. The intention was not to dismiss, but to suspend. This is clearly evidenced by the tenor of the notice. "You are hereby suspended," it reads, "without pay, until

I cannot distinguish this case from

such time as your services may be required." This meant that meanwhile he remained an inspector under his appointment, but an inspector without pay. When his services were required he was not to be reappointed, but was to recommence work under his original and existing appointment. But that was just what the court of appeals held, in the cases cited, could not be done, without paying the officer his current salary. That this was the construction placed upon the notice by the commissioners themselves is evidenced by the subsequent dismissal. This latter was clear and anequivocal. Nor did the plaintiff consider himself dismissed by the suspension. He knew he was deprived of work and pay. But how? By a notice which plainly told him that his official relations with the commissioners were not finally severed. He never asked to be reappointed. What he asked was to be sent back to work, or reinstated in active duty, not in office. The reason assigned for the suspension is immaterial, as it does not affect the real intention, as clearly evidenced by the rest of the notice and the subsequent dismissal. That real intention was, because of the lack of work, to do something which was not authorized, namely, to suspend, instead of something which was authorized, namely, to dismiss. I think the judgment should be reversed, and a new trial ordered.

(69 Hun, 605.) RIDDELL v. CORNELL.

(Supreme Court, General Term, Fifth Department. June 23, 1893.) TRIAL-FINDINGS WEIGHT OF EVIDENCE.

In ejectment for land held by defendant under a parol contract of purchase plaintiff testified that the vendor (plaintiff's assignor) offered the land to defeudant for $300, and defendant said he would take it. Defendant denied having a conversation with the vendor at the place named by plaintiff, but he did not deny that he offered $300 for the land. Held, that a finding that no price was agreed on was against the weight of evidence.

Appeal from judgment on report of referee.

Action by Le Roy Riddell against Peter Cornell. From a judgment entered in Steuben county in favor of plaintiff, defendant appeals. Reversed.

Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.

Eli Soule, for appellant.

A. M. Burrell, for respondent.

HAIGHT, J. This action is in ejectment to recover the possession of real property from the defendant. The premises in ques

tion consist of about five acres of land, on which there was a stone quarry. It formerly constituted part of a farm of which one George Riddell held a contract of purchase from the then owners. George Riddell and the plaintiff were copartners, doing business under the name and style of George Riddell & Co. The contract for the purchase of the farm was taken in the name of George for

the benefit of the firm, and the purchase money therefor was paid by the firm. Subsequently George Riddell assigned his interest in the contract to the plaintiff, and thereupon the premises were conveyed to him in accordance with the provisions of the contract. The referee has found as facts "that the said George Riddell, while he held said contract of purchase for himself and for said firm, and with the approval of the plaintiff, made a parol contract with the defendant, by which he agreed to sell to the defendant, and the defendant agreed to purchase, the lands described in the complaint; but for what price it does not appear, and is not shown by the evidence given on the trial of this action. Hence I find that the defendant has not paid the sum to be paid by said parol contract of sale to him. That defendant since said parol contract of sale to him was made, and at the time of the commencement of this action, was in possession of said premises under the same, and by the consent, license, and authority of said George Riddell and this plaintiff." The defendant requested the referee to find as a fact "that George Riddell agreed to sell the land described in the complaint to the defendant for three hundred dollars." This request was refused by the referee, and to such refusal, and to the finding as made on that subject, exceptions were duly taken. It appears to us that these exceptions were well taken; that the request was in accordance with the conceded facts in the case, and should have been found; and that the finding that it does not appear and is not shown by the evidence given upon the trial what price was to be paid for the land is against the evidence. The plaintiff himself testified upon his direct examination that "in March, 1874, the defendant came to the drug store, and said he wanted to buy the stone quarry. George talked with him, and told him he would let him have it for three hundred dollars. Defendant said he did not want a written contract; that he had debts. George told him he would let him have the five acres for three hundred dollars, he to pay interest on it till paid for. Defendant said he would take it. That is the same land described in the complaint." The testimony of the plaintiff as to the contract is the same as that alleged in the defendant's answer, with the exception that he alleges that the $300 was to be paid in stone. The defendant was not permitted to testify as to the conversation had with George Riddell, because of his death. He, however, showed by a number of witnesses the declaration of George to the effect that he had sold the defendant the quarry lot, and that he was to receive his pay therefor in stone. That the payment in stone was part of the agree ment has been found by the referee.

The referee, in his opinion, refers to the testimony so given by the plaintiff, and states that "a contract price nowhere appears, except in the testimony of the plaintiff, and it there appears as a price to be paid for three acres of the quarry, while the declarations of George Riddell relate to five acres, and it was five acres that he reserved as having been sold to the defendant. Then the defendant had the possession and worked the five acres, and by directions of