
    Mary E. Devlin, Administratrix, etc., Resp’t, v. The Mayor, etc., of New York, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 28, 1886.)
    
    Municipal corporations—New York—City op—When absent employee ENTITLED TO SALARY.
    An employee of the city of New York is entitled to recover Ills salary for the time while he is away sick on leave of absence, and the leave will be presumed to continue during the sickness, or until he has had some notification that his services are no longer required.
    Appeal from judgment in favor of the plaintiff, directed the court at circuit. ’
    
      David J. Dean, for app’lt; Charles E. Miller, for resp’t.
   Brady, P. J.

This action was brought to recover the salary of James Devlin, the plaintiff’s intestate, for the years 1879 and 1880, at the rate of ninety dollars per month. His employment was admitted by the defendants, but it was claimed that he performed no services during the years named.

Upon the trial it appeared that Devlin was employed in the finance department as door keeper, and that from the commencement of his employment until the end of the year 1878, he was regularly paid, „ although he was absent by reason of sickness, and clearly on leave for some months during that year. It also appeared that during the years 1879 and 1880 he was sick, and although only Occasionally present at the office of the comptroller, his name still appeared upon the pay rolls, and the 'amount of his salary Also for each month. The deputy comptroller, who was examined as a witness, stated that Mr. Devlin was sick during the years mentioned, and that the nature of Ms malady was such that it was supposed he would never recover.

The amount of the salary it appears was erased by a line drawn through the same in red ink, by order of the comptroller, and on the margin of the pay roll were written the words, “absent all the month sick, without pay.” But there is no pretence that tMs was commimicated to Devlin, or that he was ever notified that Ms services were no longer reqmred; although this erasure and memorandum appears to have been repeated during each month of the two years mentioned.

The case presented, therefore, is the claim of a. person who was employed in the finance department whose absence was occasioned by sickness, and, therefore, justifiable; who occasionally presented himself at the proper place, and to whom no notice of his removal, or of the intention of the department to withhold from him his pay, was ever communicated. His occasional presentation at the finance department would indicate that "he still regarded himself as subject to orders, whilst the erasure of the sum of his montMy compensation would seem to indicate that the department did not intend to pay him Ms salary in consequence of his non-performance of the duties of Ms position. The difficulty in regard to the last indication is that it was not, according to the record, made known to the intestate, and was, therefore, nothing more than a private memorandum, indicating that the department intended to make him no compensation because he performed no duty. If he had been advised of this intention, and had not then rendered the services which his position demanded, the city would not be liable for the amount of salary agreed to be paid; his occasional call at the office of the finance department, and the absence of any notification that his services were no longer required, or that he would not be compensated, justified the inference by him that his leave of absence was continued. In other words, the omission to notify him as suggested, was a circumstance from which he might well infer that his leave of absence was continued. And we think that this view of the case brings it within the rules established by the case of O’Leary v. The Board of Education (93 N. Y., 1). The court in that case, which was one of absence, said that it was true that the leave of absence was somewhat indefinite, no time being fixed by which it was limited to any particular period; but that it could have been withdrawn at any time by the defendant, or in the exercise of a discretion brought to an end by notice to the plaintiff that his services were no longer required, or by a resolution discharging him from his position.

That a leave of absence was given Devlin is established by the fact that during a part of the year 1878 he was absent from the same cause which prevented his attendance in 1879 and 1880, and his salary nevertheless paid for such part. We think, as suggested in the case cited, that there should have been some notification to him, under the circumstances, that his services were no longer required, and that as such notification was not given the judgment should be affirmed.

An examination has been made of the cases referred to by the learned counsel for the appellant in his brief, but they are regarded as having no controlling effect, except the case of O’Leary, supra, also cited, and of which the result declared herein is predicated.

For these reasons the judgment should be affirmed, with costs.

Daniels and Maoomber, JJ., concur.  