Opinion
January, 1911.
Ira Jay Dutton, for plaintiff.
Hugh M. Harmer, for defendant.
Upon the trial of this action, which was before the court and a jury, both parties asked the court for the direction of a verdict; and the court thereupon, with the consent of both parties, took the case from the jury and reserved its decision. Counsel have not submitted the pleadings, nor have I before me the evidence taken at the trial, so that I cannot give a detailed statement of the facts claimed, admitted or proved.
In brief, the plaintiff's claim is, and it is admitted, that, for sometime prior to February, 1908, he was a sewer inspector of the city of New Rochelle, appointed by the board of public works of said city, having previously passed an examination under the Civil Service Law, receiving a salary of $100 per month, and that during all of that time he was and now is an exempt volunteer fireman. About the 1st of February, 1908, he was suspended and, in March, 1909, was reinstated by the said board of public works in the same position and has ever since held the same; and this action is to recover the salary at the rate of $100 per month, from the time of his suspension to the date of his reinstatement. The reinstatement was voluntary — no mandamus proceeding having been instituted by the plaintiff.
My conclusion upon the whole case is, that a verdict should be directed in favor of the defendant, and the following are my reasons:
First. Plaintiff did not secure his reinstatement by mandamus, nor did he institute any proceedings to secure his reinstatement, and it does not seem to me that his voluntary reinstatement, after the expiration of thirteen or fourteen months, with no proceeding in the meantime on his part to secure reinstatement, can be regarded as establishing the fact of a wrongful discharge by the said board of public works, in the first instance.
Second. The plaintiff was laid off or suspended by the board of public works of the city, because of lack of work and a lack of funds, and was put back in his position as soon as there was work for him to do and money with which to pay him; and there was no wrongful act or bad faith on the part of the said board of public works.
Third. What little work there was for a sewer inspector during the time the plaintiff was laid off was performed by another sewer inspector of the city, who was also an exempt fireman, and was paid for by the city.
Fourth. It appears without dispute that the board of public works of the defendant had no knowledge or notice at the time the plaintiff was suspended, or prior thereto, that he was an exempt fireman, or had or claimed to have any preference over any other sewer inspector in the employ of the defendant.
For these reasons a verdict is directed in favor of the defendant.
Motion granted.