Opinion
April 14, 1952.
In an action under subdivision 1 of section 245 Mil. of the Military Law, by a city employee to recover the part of his salary or compensation that equals the excess of such salary or compensation over his military salary or compensation, order of the Appellate Term affirming a judgment of the Municipal Court, Borough of Brooklyn, City of New York, which grants plaintiff's motion for judgment on the pleadings in the form of summary judgment, and the judgment of the Municipal Court, reversed on the law and the facts, the motion denied, and the matter remitted to the Municipal Court for trial, with costs in this court and in the Appellate Term to appellant to abide the event. Judgment on the pleadings (Rules Civ. Prac., rule 112) should not be granted where material allegations of the complaint are denied by the answer. A cost of living bonus may be included in the phrase, "salary or compensation", as used in subdivision 1 of section 245 Mil. of the Military Law, but only when such bonus has been lawfully awarded or appropriated. The extracts from the resolutions of the appellant's board of estimate, together with the arguments presented by appellant, are persuasive that there was no cost of living bonus awarded, but the persuasion is merely prima facie. Respondent is entitled to an opportunity to establish the material allegations of the complaint which have been denied. Appellant concedes that the respondent is entitled to the ordinary statutory increments to salary. Nolan, P.J., Carswell, Johnston, Adel and Schmidt, JJ., concur.