
    Patrick Downs, Respondent, v. The City of New York, Appellant.
    
      Street sweeper in New York city—an agreement signed by Mm to take certain absences and thus reduce Ms pay estops Mm from thereafter suing for the amount of the reduction — his sala/ry is not an incident to Ms office.
    
    The appropriations for the street cleaning department of the borough of Brooklyn for the years 1899, 1900 and 1901 being insufficient to pay all the street sweepers employed in that borough at the rate fixed by the board of estimate and apportionment, and there being a provision in the Greater New York charter providing, “No leave of absence exceeding-twenty days in any one year shall be granted or allowed to any member of the uniformed force, except upon condition that such member shall waive or release not less than one-half of all salary or compensation and claim thereto or any part thereof during such absence ” (§537), the street cleaning commissioner, for the purpose of keeping within the appropriation and of obviating the necessity for discharging a portion of the street sweepers employed in the borough of Brooklyn, made an agreement with such street sweepers by which each of them agreed to take a leave of absence for a certain time and to allow a deduction to be made from his compensation.
    
      Neld, that a street sweeper who signed the agreement and gave weekly receipts for the moneys received thereunder was estopped from maintaining an action against the city of New York to recover compensation for the time covered by the leave of absence granted pursuant to the agreement;
    That it could not be said that the arrangement made between the commissioner and the street sweepers was not within the provisions of section 537 of the Greater New York charter;
    That such street sweeper was not an officer whose salary was an incident to his office.
    Appeal by the defendant, The City of New York, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of July, 1902, upon the verdict of a jury rendered by direction of the. court.
    
      Edward J. Mg Quire, for the appellant.
    
      Charles Bland/y, for the respondent.
   Patterson, J.:

The plaintiff claims that from October, 1899, to October, 1901,, he was lawfully and continuously in employment as a member of the uniformed force of the department of street cleaning of the-city of New York, in the borough of Brooklyn, at a salary or compensation of $720 a year. Under a resolution of the board of estimate and apportionment of the city of New York that amount, was, on the 30th of October, 1899, fixed as the yearly compensation of street sweepers and drivers in the department of street cleaning from and after the 1st day of January, 1900. The plaintiff' claims that he has not received on account of his compensation as. such employee the sum of $138.04, remaining due and owing to. him as a balancé of moneys which the city of New York has. neglected and refused to pay him and has unlawfully withheld and caused to be withheld from him, the said balance being for seventy days’ .services at the rate of $720 a year.

As a partial defense the city of New York sets up that the sum appropriated by the board of estimate and apportionment of the city of New York for the street cleaning department of the borough of Brooklyn in the year 1899 was insufficient to satisfy and pay all of the street sweepers therein employed at the rate ,of $720 per annum, and that all the money appropriated by' the board of estimate and apportionment for the years 1900 and 1901 was wholly exhausted in the payment of liabilities incurred by the department during such years; and the sum claimed by the plaintiff and set forth in the complaint would be in excess of the sum so appropriated, and that, consequently, pursuant to sections 1541 and 1542 óf the charter (Laws of 1897, chap. 378), is not a charge, claim or liability against this defendant. It is further asserted by the city as matter of defense that if a fixed salary were prescribed at the rate of $720 per annum the street cleaning department was entitled to deduct therefrom a certain portion of the plaintiff’s pay, under section 537 of the charter, which is in the following'words: “No leave of absence exceeding twenty days in any one year shall he granted or allowed to any member of the uniformed force, except upon condition that such member shall waive or release not less than one-half of all salary or compensation and claim thereto or any part thereof during such absence,” and further that the plaintiff, early in 1900, requested leave of absence for one day in each and every week without compensation during the year 1900 and until further notice, and such request was granted. The situation was then this: There was a law allowing $720 a year compensation to street sweepers; there was an insufficiency of appropriation to meet that amount for the number of men employed in Brooklyn ; there was a provision of the statute which authorized the commissioner to deduct one-half pay of absentees from work for more than twenty days, and the proof shows that thereupon, in order to make the appropriation extend over the whole force employed in Brooklyn, it was agreed between the men so employed and the commissioner that each of the men should take a leave of absence for a. certain time and allow a deduction to be made from his compensation and thus the whole force could be retained without any person being subjected to dismissal. This plaintiff was a party to that arrangement and signed a paper expressing it, and gave weekly receipts for the moneys he received under it. By so doing he saved himself from possible discharge, retained his place and received all the benefits of his retention in service.

The question is whether or not the plaintiff is entitled to receive the full amount of $720 a year notwithstanding his action in waiving that right and thus placing himself in a position to be continued in the employment of the city. His consent to the arrangement was purely voluntary and in no sense compulsory and made under circumstances conclusively showing that he fully understood the necessity that required the arrangement to be made. Every consideration of equity, morality and propriety requires that he should be regarded as estopped from claiming adversely to his deliberate agreement. It seems to us that the question is one not relating to an officer whose salary is an incident to his office and that the views expressed by the late Hr. Justice Ho Adam in People ex rel. McCloskey v. Andrews (9 Misc. Rep. 569) state the real legal status of a uniformed member of the street cleaning department of the city of New York, namely, “Members of the uniformed force take no oath of office and are not officers in any sense of that term, and, though required to pass a physical inspection, do not undergo a civil service examination and are treated by the law as laborers rather than officials.” This plaintiff, therefore, when he entered into the arrangement was at full liberty to contract just as he did. We cannot concur with the learned trial judge that the arrangement made was not, either in fact or in law, within the provisions of section 537 of the charter.

The judgment appealed from should be reversed, with costs,

Van Brunt, P. J., O’Brien and McLaughlin, JJ'., concurred; Laughlin, J., concurred on first ground stated. .

Judgment reversed, with costs.  