
    Margaret P. Gilmore, Respondent, v. City of New York, Appellant.
    Supreme Court, Appellate Term, First Department,
    June 24, 1968.
    
      
      J. Lee BLankim, Corporation Counsel (Stanley Buchsbaum and Anthony B. Cliedman of counsel), for appellant.
   Per Curiam.

It is conceded that plaintiff had worked in the Magistrates’ Court on weekends and holidays for a number of days from November 24,1960 to November 24,1961. She retired on March 23, 1962 without ever receiving credit therefor either by time off or monetary payment. On October 29, 1965, the Presiding Justices -of the Appellate Division for the First and Second Departments handed down a decision in an employee grievance proceeding determining and ordering that the employee there involved be credited with compensatory time off earned for the time worked on weekends and holidays during the period dating from November 1, 1960 to June 30, 1962. There is no doubt that had the instant plaintiff not retired, she would have been the beneficiary of a similar ruling granting her time off. Since she is no longer an active employee, she is .seeking the monetary equivalent.

The case of Stetler v. McFarlane (230 N. Y. 400), cited by appellant for the proposition that there must be statutory authority for payment in lieu of earned leave, is not applicable here. This and the other case cited by appellant involve situations where the recipient of the earned leave was fully aware of the time coming to him but for one reason or another failed to utilize the time before employment ceased. In the instant matter a judicial determination on which plaintiff could rely did not come down until October, 1965, some three years after she retired. Her right to extra time off was, theref ore, unrecognized by her superiors, and before her retirement it was impossible to avail herself of it.

The city erroneously saw fit to deny compensatory time tq plaintiff while she was employed. The city, having benefited by her services, should be held accountable. Absent statutory mandate, in the eyes of the court, the City of New York as a litigant has no greater or lesser status than any other litigant. In ordinary circumstances, the recipient of the extra services rendered would be deemed unjustly enriched thereby and required to answer in damages therefor. The City of New York should be held similarly answerable.

Judgment should be affirmed, without costs.

Hofstadter, J.

(dissenting). Plaintiff retired in March of 1962. In April of 1967, she instituted this action to recover the cash equivalent of compensatory time off due her at .the time of retirement, based on a Joint Administrative Order (No. 11) of the Appellate Divisions for the First and Second Departments dated October 29, 1965, which decided that one Donald Dawson should be credited with compensatory time off for time worked on weekends and holidays between 1960 and 1962. But there .are two fundamental differences between plaintiff’s case and that of Mr. Dawson. Mr. Dawson was still in city employ — Miss Gilmore had .retired. Miss Gilmore sues for a cash equivalent — Mr. Dawson was granted only compensatory time off, not cash.

Public policy, embodied in .the State Constitution (art. VIII, § 1), statutes:(General City Law, § 25; Public Officers Law, § 67), and in the authorities, prohibits retroactive grant of such a cash equivalent (Crane v. City of New York, 185 Misc. 456, affd. 270 App. Div. 930, affd. 296 N. Y. 717; Schaefer v. City of Long Beach, 271 N. Y. 81; Matter of Willett v. Devoy, 163 App. Div. 553; Wadsworth v. Board of Supervisors of Livingston County, 217 N. Y. 484, 449-501; 16 Op. St. Comp., 1960, p. 20; 20. Op. St. Comp., 1964, p. 359).

"While it may seem inequitable that plaintiff be deprived of 11 days’ pay for work she did without compensatory time off, a cash award would have the practical effect of increasing her salary beyond .the amount fixed in the city budget. This is not permissible in .the absence of a statutory provision or executive order requiring the city to pay for these extra days in lieu of compensatory time off. Research discloses no such provision or order applicable to plaintiff. Her right to compensatory time off ended upon her retirement (Simson v. City of New York, 151 N. Y. S. 2d 218; Zichello v. City of New York, N. Y. L. J., March 27,1953, p. 1030, col. 2; Matter of Osborne v. Board of Estimate, 15 Misc 2d 250).

I, ¡therefore, dissent and vote to reverse and to dismiss the complaint.

Gold and Markowitz, JJ., concur in Per Curiam opinion; Hofstadter, J., dissents in dissenting memorandum.

Judgment affirmed, without costs.  