
    Francis De Canio, Respondent, v. The Mayor, etc., of the City of New York, Appellant.
    (New York Superior Court—General Term,
    December, 1895.)
    1, Office — Abandonment.
    Mere absence Of an aqueduct inspector from duty for two. months " without explanation does not, as matter of 'law, constitute .an abandonment of the office.
    2. Same.
    Plaintiff, an aqueduct inspector, claimed to be sick and made application for leave of absence without, pay, which was refused. He thereupon absented himself for about two-, months; after - which he repeatedly reported for duty,-but was not assigned, and was finally discharged. Held, that the facts did hot justify ah inference of abandonment by him, and that he was entitled to the salary , of the. office up to the time of -his discharge.
    Exceptions ordered heard -at the General Term, in, the first instance.
    
      Francis M. Scott, Counsel to the Corporation (Edward H. Hawke, Jr., and F. E. V. Dunn, of counsel), for appellant.
    
      Edward Browne (Charles Strauss, of counsel), for respondent.
   Freedman, J.

The trial of the .issues in this cáse resulted in the direction of a verdict for the plaintiff for $2,731.91. The defendant excepted generally to the direction of the verdict and especially to the amount of. the- verdict, and the court ordered defendant’s exceptions to be heard at, the General Term in the first instance, and that the entry of judgment upon the verdict be suspended'in the meantime! Although the counsel for the defendant specially excepted, to the-amount of the verdict, he failed to point out any error of-computation, and thus the whole labor-of inquiring into the correctness of thé amount has been cast upon the court.

* The plaintiff sues to recover for salary alleged to he due to him as an inspector of masonry on the- new aqueduct from June 8, 1887, to July 8,1887, and from May 1,1888, to Decernber 18, 1889, when he was notified that he had been dismissed from the service. The answer admits the appointment of the plaintiff as such inspector on the 8th day of June, 1887, to* take effect July 8, 1887. At the trial the plaintiff withdrew the claim for the month last mentioned, and admitted that he had resigned as inspector of masonry on October 11, 1889, at which time he was appointed an excise inspector. The plaintiff, therefore, in the aspect of the case most favorable to him could recover only arrears of salary from May 1, 1888, to-October 11, 1889, at the rate of $120 per month, amounting altogether to $2,080. The record shows no facts upon which the plaintiff can claim interest except the fact that on December 9, 1891, he presented his claim to the comptroller of the city of Yew York for adjustment, and that the said comptroller failed to make adjustment and . payment thereof. "Under the circumstances of this case, therefore, the recovery of the plaintiff on the day of the trial, viz., May 21, 1894, could not exceed the sum of $2,080, with interest thereon for two years five months and thirteen days, amounting to-$306.06, making a total of $2,386.06.

The verdict as directed was for $2,723.91, and, consequently, • excessive; but, inasmuch as a reduction to the proper-amount may be ordered, in case the plaintiff is otherwise entitled to recover a specific sum,- it is necessary to consider the other questions in the case.

The defense relied upon' is that the plaintiff abandoned his office.

The record shows that, at the close of the testimony given by both parties, the court called upon defendant’s counsel tosíate what defense there was; that defendant’s counsel answered that the plaintiff had abandoned his employment and left; that ■ the court then inquired what the evidence was on which counsel relied; and that said counsel thereupon stated as follows:

“ Mr. Hawke.—The fact that he left the work the first of April, claiming that he was sick. During the month of April he filed a doctor’s certificate for that month. He absented himself without explanation, or without a doctor’s certificate, from the 1st of May until the 13th of July, 1889, on which day he came to the division engineer, and asked to be put to work; and it was not until that time, after several months of 'absence without an explanation, that he reported to the division engineer; we claim that is an' abandonment.”

Ho proof had been given of any statute or rule which required a doctor’s certificate, and the date given as the 13th day of July, 1889, was a mistake. It should have been the 13th day of July, 1888.' Moreover, it was shown that the salary of the plaintiff for the month of April, 1888, had been paid. The case, therefore, as it appeared before the trial judge, simply presented the question whether the absence of the plaintiff from duty between the 1st day of May, 1888, and the 13th day of July,'1888, without an explanation.at the time, constituted an abandonment of the office.

It clearly did not as matter of law, for under the statutes of this state neglect of duty by an officer, absence from the place where the duties are to be performed, nonuser of powers or abandonment, are not modes of vacating an office, but,, if unjustifiable, are grounds for removing him from office by the proper authority.

But even if abandonment might be inferred conclusively • from nonuser 'or neglect of duties, so as to amount in itself to an absolute vacation, without express renunciation of the office once lawfully held by the party, it could only be when the. ■ nonuser or neglect is not only total or complete, but of such continuance or under circumstances so clearly indicating absolute relinquishment as to preclude all future .question of the facts.

In the case at bar no such inference of abandonment could fairly be drawn, either by the trial judge or by the jury, because additional facts showed that on May 28, 1888, the plaintiff, on the advice of his physician, applied for leave of absence without pay, . to commence- June 1, 1.888, which application was denied by the -aqueduct commissioners ; that -he then reported for duty at least on July 13,, 1888, if not before, and announced Ms readiness to go to work, and was told by the division engineer that there was no place for him; that on his second visit he was told to see the chief engineer; that he saw the chief engineer, who told him to come back again and that he would see; that he continued to report to the chief engineer repeatedly thereafter and held himself in readiness to obey his orders, but was not assigned to duty, and that it was not until December 24, .1889, that he received notice that he was dismissed from the service.

In view of these facts, and the chief engineer not having been called in contradiction, nor his nonproduction explained or accounted for, the defense of abandonment wholly failed. The plaintiff was not even suspended, as the fact was in Gregory v. Mayor, 113 N. Y. 416. Nor was there an agreement not to claim salary during nonperformance of duty, as the fact was in Emmitt v. Mayor, 128 N. Y. 117.

In the case last referred to .the Court of Appeals, speaking of the office of inspector of masonry,, said.: “ The office of inspector being one created by the act, when filled, the incumbent became more than a mere ordinary employee or laborer engaged by the commissioners. Besides, it appears that his candidacy for the office must have been certified by a ■certificate from the civil service commission, and his qualifications further certified to by at least three of the aqueduct commissioners. Such an employee of the work cannot be classified or regarded as a temporary or occasional laborer. He fills an office with certain more or less responsibilities attached to it, and he becomes entitled to receive the compensation as it was fixed by the commissioners until they see fit'to discharge him.”

For the foregoing considerations the plaintiff was entitled to the direction of a verdict, but the amount should not have exceeded the sum of $2,386.06. The record discloses no other error.

Defendant’s exceptions should be sustained, the verdict set aside and a new trial ordered, with costs to the defendant to .abide the event, unless the plaintiff stipulates to reduce the verdict to $2,386.06, in which event defendant’s exceptions will he overruled and judgment ordered for the'plaintiff upon the verdict as reduced, without costs at the General Term.

MoAdam and Gildebsleeve, JJ., concur.

Exceptions sustained, verdict set aside and new trial ordered, with costs to defendant to abide event, unless plaintiff stipulates to reduce' verdict to $2,386.06, in which event exceptions are overruled and judgment ordered for plaintiff on verdict as reduced, without costs.  