
    John Collins, Respondent, v. The City of New York, Appellant.
    First Department,
    June 28, 1912.
    Civil service — Hew York city — steam engineer — agreement waiving compensation for stated period — salary not incident to office.
    In the year 1908 the commissioner of public buildings and offices under the borough president of the borough of Brooklyn, found in November that he was in danger of overrunning the appropriation for salaries and wages for his department during the year. He thereupon called a meeting of his employees and explained the condition of affairs to them, and they, in consideration of being retained on the list of employees, voluntarily entered into an agreement with the city waiving all right to compensation for the remainder of the year.
    Held, that a steam engineer signing the agreement thereby waived his right to recover from the city.
    A steam engineer in the employ of the city, is not an officer whose salary is an incident to his office.
    Appeal by the defendant, The City of New York, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New' York on the 22d day of December, 1911, affirming a judgment of the Municipal Court of the city of New York in favor of the plaintiff.
    
      Loyal Leale, for the appellant.
    
      S. John Block, for the respondent.
   Scott, J.:

Plaintiff was a steam, engineer in the employ of the city of New York, borough of Brooklyn, at the compensation of four dollars and fifty cents per diem, and he sues for payment at that rate for the period from December 16 to 31, 1908.

In the year 1908 the commissioner of public buildings and offices, under the borough president of the borough of Brooklyn, found in November that he was in .danger of overrunning the appropriation for salaries and wages for his department during’ the year, and that it would be impossible to continue during the remainder of the year to pay the amount of wages and salaries he was' then paying. He thereupon called a meeting of his employees and explained the condition of affairs to them, stating that unless he could procure more money or come to some agreement with the employees he would be obliged to dismiss a large number of them and send their names back to the civil service lists. A considerable number of the employees expressed their reluctance to lose their positions and have their names sent back to the civil service lists with resulting uncertainty as to their reappointment and requested the superintendent to devise some method by which this course would be averted.

Accordingly the superintendent drew up an agreement, which was signed by a large number of the employees, including plaintiff. . This agreement stated the financial condition in which the department found itself, as above explained, and contained the following waiver or agreement on the part of the employees who signed it: “Now, therefore, I, the undersigned, being one of the said employees in question (to wit, an engineer), in consideration of the above-mentioned conditions and of my being retained under such circumstances in the list of employees of said Bureau, and upon the terms indicated (instead of being wholly dropped from said list and reported to the Civil Service Commission as no longer in the service) do hereby for myself and for. my heirs, executors, administrators or assigns freely and expressly consent, promise and agree that for any work,' labor or service by me to be done or rendered as such employee of said Bureau in or about the maintenance of the public buildings and offices of the borough or otherwise* I am to have, receive or be entitled to no pay, salary, wages or compensation other or greater than simply about one equal share of the amount which the Borough President shall or may have in his hands' legally available for the purpose, and I hereby waive, release and surrender any and all actual or possible right or claim to demand, receive or recover from the City of New York or the Borough of Brooklyn, or any of the officials or representatives of said City or Bureau any amount whatso ever, as, for or on account of any such pay, salary, wages or compensation for any such services by me as such employee during the remainder of the year 1908.”

By means of transfers from other appropriations and the issue of a certain amount of revenue bonds it was found possible to pay the employees down to and including the 15th day of December, 1908, but not to pay them for the remainder of the year. The plaintiff remained in the employ of the city and has so continued ever since and now seeks to repudiate his agreement and recover for the period mentioned.

The plaintiff did not hold an office to which his compensation attached as an incident. He was merely a per diem employee, and it was fully competent for him to contract with the city for a reduction or non-payment of his wages during a stated period. A similar case was before this court in Downs v. City of New York (75 App. Div. 423; affd., 173 N. Y. 651), and what was said then is entirely applicable to the present case: His [plaintiff’s] consent to the arrangement was purely voluntary, and in no sense compulsory, and made under circumstances conclusively showing that he fully understood the necessity that required the arrangement to be made. Every consideration of equity, morality and propriety requires that he should be regarded as estopped from claiming adversely to his deliberate agreement.” That the agreement in question was voluntary and not compulsory is evident. The. superintendent made no attempt to coerce the employees. He merely stated to them the facts as to the appropriation. If a sufficient appropriation could not be obtained, or some arrangement made by the consent of the employees, it would have been not only his right, but his positive duty, to dismiss sufficient employees to bring the amount of wages to be paid within the limits of the appropriation. If he had dismissed them their names would have been returned to the civil service lists and they would have been obliged to take the chances of a reappointment. This naturally they wished to avoid for they would have encountered the hazard of not finding re-employment within a year, at the expiration of which time their names would have been dropped from the list. (Greater N. Y. Charter, § 1543.) It was a distinct advantage to plaintiff and others similarly situated to be retained in the service, as they could not have been but for this agreement, and that advantage served as a sufficient consideration for the agreement in question. The same question involved in this appeal was considered by Mr. Justice Stapleton in Kirk v. City of New York (N. Y. L. J. Jan. 3, 1911), and decided in favor of the city in a very satisfactory opinion. We have arrived at the same conclusion. It follows that the determination of the Appellate Term and the judgment of the Municipal Court must be reversed and a new trial granted, with costs in all courts to appellant to abide the event'.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Determination reversed and new trial ordered, with costs in all courts to appellant to abide event.  