
    Mary E. Connor, Adm’rx, Pl’ff, v. The Mayor, etc., of New York, Def’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1892.)
    
    1. Witness—Officer of city—Code Civ. Pro., § 839.
    The chief engineer of a municipal department is not disqualified under § 839 of the Code, by reason of interest, from testifying, in an action to recover salary claimed to be due a deceased employee, to conversations had by him with the deceased.
    3. Municipal corporations—Discharge of employee.
    After receiving a letter from the deputy commissioner of public works stating that he was suspended, plaintiff’s intestate, who was assistant engineer, had a conversation with the chief engineer, who told him that lie had no further work for him to do and that, therefore, his services were dispensed with, and gave him letters of introduction to obtain work elsewhere. Intestate obtained work in other departments, and made no claim for salary as assistant engineer during his lifetime. Held, that there was ample evidence to justify the jury in finding that he was discharged; and that the court was correct, under the circumstances, in charging that the transaction between him and the chief engineer amounted to a discharge.
    Motion for new. trial on exceptions taken at circuit, a verdict having been found in favor of the defendant, and exceptions ordered to be heard in the first instance at the general term.
    
      L. L. Kellogg, for motion; E. H. Hawke, Jr., opposed.
   Van Brunt, P. J.

The plaintiff, as administratrix of one Addison Oonnor, deceased, sues to recover the sum of $7,950, alleged to be due for salary to said deceased as an assistant engineer of the department of public works, from July 31, 1886, to January 4, 1891. The answer alleges that on or about the 31st of July, 1886, said Connor was duly and regularly discharged, after which time he performed no services for the defendant, and that he acquiesced in said discharge and abandoned the said office for other employment.

It appeared that said Connor, for a considerable time prior to the 31st of July, 1886, was assistant engineer in the department of public works, and that on the 23d of July, 1886, he received a notice of suspension as assistant engineer, to take effect on the 31st of July, 1886, from the deputy commissioner of public works; and that between the 23d of July and the 31st of said month he hada conversation with the chief engineer of the Croton aqueduct, in which the chief engineer stated that he had no further work for him to do, and that therefore his services were dispensed with, upon which occasion Connor talked with the chief engineer about getting work elsewhere, and the chief engineer gave him letters of introduction; and from and after the 31st of July Con-nor never rendered any services to the department, nor did he ever offer to render any such services.

It further appeared that in 1890 he was employed in the dock department and in the meantime he had been out in Illinois and Nebraska on bridge work. Connor having died on about the 4th of January, 1891, intestate, the plaintiff was appointed his administratrix and thereupon this action was brought to recover the-salary of Connor as engineer in the department of public works from the 31st of July, 1886, to the time of his death.

Upon the trial of the action, one George W. Birdsall, the chief engineer of the Croton Aqueduct, was examined as a witness as to communications had between himself and Connor. This was objected to by the plaintiff upon the ground that he was a party in interest, and because he was liable to criminal prosecution, and also because he was liable to be prosecuted in a civil action because of misconduct in office.

Objection was also taken to certain other evidence which will be noticed hereafter; and also to the refusal of the- court to charge-the jury that there was no proof of abandonment in the case; and that the court erred in leaving to the jury any question in relation-to the discharge of Connor, the proof being to the effect that he was suspended and not discharged; and also to the charge of the-court that if they found that the chief engineer told Connor that they had no further work for him to do and therefore his services-were dispensed with, that it was equivalent to a discharge.

It is manifest that the Chief Engineer Birdsall was not prevented from testifying as to conversations had with the deceased. Connor because of § 829 of the Code. The interest there referred to means a vested interest, an interest in the litigation itself, not a, collateral or possible interest, as shown by the opinion of this-court in the case of Bowen v. Sweeney, decided on the 18th of February, 1892, and cases there cited. 44 St. Rep., 182.

The error claimed in admitting testimony as to conversations, with the plaintiff before her appointment as administratrix of the= decedent cannot avail, because such evidence certainly did no harm to the plaintiff, as it was only testimony establishing a fact which had previously been admitted upon the record.

The claim that the court erred in presenting any question to the jury is evidently not well founded. The jury, from all the facts of the case, had the right to find that Connor had been discharged, and not merely suspended from his office as assistant engineer, and that he so understood the action by which his connection with the department was severed, especially in view of the fact that by statute the chief engineer of the Croton Aqueduct department (who at the time of the discharge of Connor was Mr. Birdsall) had the power to appoint, remove at pleasure, and detail the assistant «engineers.

If, therefore, the conversation with Connor occurred in the manner testified to by Mr. Birdsall, there was ample evidence to justify the jury in finding that Connor had been discharged; the letter of the deputy commissioner of public works being merely surplus-age, and in no way affecting the action of the chief engineer.

The charge, of the court that if the chief engineer told Connor that there was no further work for him to do, and that his services were dispensed with, that amounted to a discharge, is clearly correct under the circumstances of this case, because it is apparent that Connor understood it to be a discharge, as he has never made any claim to the contrary, or any offer of services to the department since he left it, and sought and accepted employment elsewhere. It is only after he is dead that courage enough has been acquired to present the claim against the city for his salary during the whole period from the time of his discharge to his death, although no services were rendered and no offer of services made, and not the slightest intimation upon his part that he did not understand that his connection with the department had been severed.

These considerations also show that there was no error in the refusal to charge that there was no evidence of abandonment by Connor of the office. It is entirely immaterial whether there was evidence of abandonment or not. If he was discharged and so understood it, it may not be an abandonment of the office, but it was a severance of his connection with the office more complete and satisfactory than any abandonment could have been.

All that the request to charge meant was that there was no recognition by Connor of his discharge, which was entirely incorrect, and a charge of that kind would have conveyed an erroneous impression to the jury.

There seems to be therefore no error which would call for a setting aside of the verdict, and the exceptions should be overruled and judgment ordered upon the verdict, with costs.

O’Brien and Andrews, JJ., concur.  