
    Charles Myers, App’lt, v. The Mayor, etc., of New York, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1892.)
    
    Municipal corporations—Suspension of inspector of grading—Compensation.
    Plaintiff, who was an inspector of regulating and grading in the department of public works, and paid by the month, was suspended by the commissioner, but notwithstanding this attended and tendered his services day by day. Reid, that he continued to be an employee of the department, and was entitled to the agreed compensation.
    
      (Gregory v. Mayor, 113 N. Y., 416; 22 St. Rep., 703, followed.)
    ■ Appeal from judgment dismissing the plaintiff’s complaint at circuit.
    
      W. W. Jenks, for app’lt; W. A. Sweetser, for resp’t.
   Per Curiam.

If the plaintiff had been discharged from his position as an inspector of regulating and grading in the department of public works, his case would have come within the principle of Higgins v. The Mayor, 42 St. Rep., 711; and in that event the complaint would have been properly dismissed, for the reason that no services were rendered during the period covered by his complaint. But he was not discharged. He was merely suspended, as appears from the notice served upon him by the commissioner of public works. His case thus comes within the principle of Gregory v. The Mayor, 113 N. Y., 416; 22 St. Rep., 703. See, also, Emmitt v. Mayor, 128 N. Y., 117; 38 St. Rep., 907. Indeed, the cases are entirely parallel, for the present plaintiff was paid by the month, and occupied the position of inspector of regulating and grading, while Gregory was paid in the same manner, and occupied the position of inspector of excise. The reasoning of the Gregory case is applicable to this, and we think calls for a reversal of this judgment. The plaintiff, notwithstanding the suspension, proceeded to the department of public works, and tendered his services day by day, as Gregory did in the case cited. He continued to be an employee of the department, a duly appointed inspector of regulating and grading, until such time as he ceased to occupy that position by his own resignation. He is, therefore, entitled to the agreed compensation for the period during which he continued to be a public servant pursuant to his original employment.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide event.

Van Brunt, P. J., O’Brien and Barrett, JJ., concur.  