Opinion
October Term, 1897.
Horace Graves, for the appellant.
F.W. Catlin, for the respondent.
In July, 1876, the plaintiff was employed as a carpenter by the defendant for an indefinite term, and remained in the defendant's employ until December 16, 1890, when he was discharged. He rendered no services and made no tender of his services until November 16, 1891, when he was again employed by the defendant as a carpenter. He brings this action to recover compensation for the eleven months during which he was not employed.
The complaint alleges that the plaintiff was a veteran and was discharged contrary to law. No legal proceedings were ever taken to restore him to his position, nor does the complaint allege that, at the time of the plaintiff's discharge, the defendant knew that he was a veteran or that he then claimed the rights of a veteran. The defendant demurred to the complaint, the demurrer was sustained, and the plaintiff appeals.
The question of a veteran's right to retention of office cannot be raised upon this appeal. The simple question is whether the plaintiff can recover pay for the time he was not employed. This question is set at rest in Higgins v. Mayor, etc., of New York ( 131 N.Y. 128) where the plaintiff, a veteran employed by the city as a laborer at the dog pound, was discharged. He instituted proceedings for reinstatement on the ground that he was a veteran and succeeded, and was re-employed by the city. He then brought action to recover his wages for the time during which he was not employed. The Court of Appeals, Mr. Justice GRAY writing the opinion, distinctly held that the action was not maintainable and that the city was not obliged to compensate him for the time when he was not in actual service.
The plaintiff's counsel calls our attention to the opinion of Mr. Justice CULLEN in the unreported case of Condon v. The Board of Education, decided in 1891; but that was a proceeding to reinstate the relator, and the judgment of the court has no application to the case at bar.
The judgment is affirmed.
All concurred.
Interlocutory judgment affirmed, with costs.