Opinion
June 27, 1949.
Action by plaintiff, a Magistrate of the City of New York, to recover the difference between the salary differential allegedly due under section 245 Mil. of the Military Law and the amount actually paid him as such differential while in military service. Plaintiff had agreed to accept a smaller sum as the differential provided by said section; and in this action claimed that his waiver of the full amount had been induced by fraud and duress. No written protest as to the amount paid was noted upon the payroll receipts, either by plaintiff or by his agent to receive the salary, acting under a power of attorney. Judgment in favor of plaintiff reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. The receipt, without protest, of the salary paid is a complete bar to this action. (Administrative Code of the City of New York, § 93c-2.0; Quayle v. City of New York, 278 N.Y. 19; Gendel v. City of New York, 297 N.Y. 933.) In any event a new trial would be granted because, in our opinion, the finding of coercion, particularly with respect to the failure to sign the payroll receipts under protest, is against the weight of the evidence. Nolan, P.J., Carswell, Sneed, Wenzel and MacCrate, JJ., concur.