
    LINCOLN C. ANDREWS v. THE UNITED STATES.
    [No. 30785.
    Decided March 16, 1914.]
    
      On the Proofs.
    
    At a former trial of this ease the petition was dismissed, and it will be found fully reported in 47 O. of Ols., page 51. The plaintiff makes a motion for a new trial, alleging error of law, and after further and more consideration of the legal question involved, a new trial is granted and a judgment rendered in favor of the plaintiff under authority of the case of Giavey v. United States, 187 U. S., 595.
    
      The Ref otter’s statement of the case:
    The following are the facts of the case as found by the court:
    I. During the period for which this claim has been made the claimant was a captain in the Fifteenth Regiment of United States Cavalry, with a record of over 15 years’ service.
    II. The claimant having accepted employment with a commercial company, was granted six months’ leave of absence, to take effect January 1,1907, by paragraph 2, Special Orders, No. 305, War Department, dated December 28, 1906, which leave was extended for four months, to take effect July 1, 1907, and to expire October 31, 1907, by paragraph 26, Special Orders, War Department, dated June 17, 1907.
    ITT. While the claimant was enjoying the extension of his leave of absence, the Adjutant General of the United States Army, on July 31, 1907, sent him the following telegram:
    “ By direction of the President, although your leave is not revoked, your absence from this date will be without pay.”
    His leave without pay from August 1,1907, to October 31, 1907, was not requested by the claimant, but he did not file a protest against such action nor relinquish his leave and return to duty.
    IV. The claimant was absent from duty from January 1, 1907, to October 31, 1907. From August 1, 1907, to October 31, 1907, he received no pay. His half pay for said period was $325.
    
      Mr. George A. Kmg for the plaintiff. King & King were on the brief.
    
      
      Mr. George M. Anderson, with whom was Mr. Assistant Attorney General Huston Thompson for the defendants.
   Per Curiam :

This case was reported in 47 C. Cls., 51, wherein the petition was dismissed, and the claimant now makes a motion for a new trial upon the ground of error of law.

The facts are undisputed, and as they briefly appear in the foregoing findings it is unnecessary to restate them here. It is only necessary to say that upon further and more mature consideration of the legal question involved we have come to the conclusion that an error was committed by the court upon the former trial, and that judgment should have been rendered in favor of the claimant. Glavey v. United States, 187 U. S., 595; Whiting v. United States, 35 C. Cls., 291, 301; Dyer v. United States, 20 C. Cls., 166.

The claimant’s motion for a new trial will be allowed and judgment now entered in his favor in the sum of $325, and it is so ordered.  