
    Patrick H. Downey, Appellant, v. The City of New York, Respondent.
    (Supreme Court, Appellate Term, First Department,
    March, 1914.)
    City of New York — employee absent without leave — no recovery for service not rendered.
    A telephone operator in the public works department of the city of Hew York cannot recover salary for time that he, because of illness, was absent without leave of his superior.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the defendant, after a trial by the court.
    Theodore I. Schwartzman (Isidore Solomon, of counsel), for appellant.
    Archibald R. Watson (Clarence L. Barber, of counsel), for respondent.
   Guy, J.

Plaintiff, a telephone operator in the public works department in this city, sues to recover salary at the rate of $750 per annum from May 10 to November 30, 1912, while he was absent, without leave, because of illness. Plaintiff suffered from tuberculosis to such an extent that he was unable to do any work from May 1, 1912, and he is still suffering therefrom, and was and still is a patient at the state sanatorium known as Seton Hall at Spuyten Duyvil.

In May, 1912, plaintiff’s wife and physician notified his superior of his condition. He was absent from his work from May 1 to November 30, 1912, by reason of such illness. On November 30, 1912, he was duly notified of his discharge, by reason of a reduction in force. For the ten days from May 1 to May 10, 1912, during which plaintiff was absent from duty while he had sick leave, he was paid. After May tenth he had no leave, and his name was, by his superior’s, order, duly marked on the pay rolls “ absent without leave.” Plaintiff was a city employee, not a city officer. Where a city employee is absent without leave on account of illness, his superior may deduct, and in the case at bar did deduct, his salary during the term of such absence without leave. Greater N. Y. Charter, § 1543; People ex rel. Grimshaw v. Prendergast, 135 N. Y. Supp. 164, 165; affd., 132 App. Div. 937; affd., 197 N. Y. 538; Reilly v. City of New York, 139 N. Y. Supp. 718.

A city employee absent from duty without leave cannot recover salary without service.

In the Brooklyn special term cases cited by appellant the employee was absent with leave.

Seabuby and Delany, JJ., concur.

Judgment affirmed, with costs.  