
    Mary A. Wardlaw, Adm'rx, Resp't, v. The Mayor, etc., of the City of New York, App'lt.
    
    
      (Court of Appeals,
    
    
      Filed February 10, 1893.)
    
    Municipal corporations—Suspension of officer.
    The commissioner of public works addressed a communication in writing to plaintiff’s intestate, as follows: “Notice of suspension as assistant engineer in the department of public works is hereby served on you, the same to take effect on and after July 81, 1886.” On January 30,_ 1890, he addressed another communication as follows: “Sir: Understanding from the counsel to the corporation that you claim to be still in the employ of • the department as an assistant engineer, and without admitting the fact to be so, I desire to set at rest all doubt on that point by discharging you from and after this date, which I hereby do.” In the meantime intestate had accepted other employment from the commissioner. Held, that it was a question of fact which should have been submitted to the jury, to determine upon the letters of the commissioner, the conduct of the parties, and all the facts and circumstances of the case, whether the so-called letter of suspension. was not intended as a termination of the relations, etc., and whether the subsequent conduct and action of the intestate did not amount to an abandonment of the office if there was not a technical discharge.
    Appeal from judgment of the New York superior court, general term, affirming judgment in favor of plaintiff entered on verdict directed by the court.
    
      J). J. Dean, for'app’lt;
    
      L. Laflin Kellogg, for resp’t.
    
      
       Reversing 46 St. Rep., 861.
    
   O’Brien, J.

The plaintiff’s intestate was, on the first day of June, 1885, appointed assistant engineer in the department of public works of the city of New York. The salary of the place was fixed at $1,500 per year, which, on January 1, 1886, was increased to $1,800. He was paid the stipulated salary up to July 23, 1886, when the commissioner of public works addressed to him a communication in writing as follows: “ Notice of suspension as assistant engineer in the department of public works is hereby served on you, the same to take effect on and after July 31, 1886.” The recovery in this case was for the salary subsequent to this date, and to January 30, 1890, on which last-named date the commissioner addressed to him another communication in writing as follows:

“Sir: Understanding from the counsel to the corporation that you claim to be still in the employ of the department as an assistant engineer, and, without admitting the fact to be so, I desire to set at rest all doubt on that point by discharging you from and after this date, which I hereby do.”

The original plaintiff died while the action was pending and the present plaintiff, his widow and administratrix, was substituted. The commissioner had power to discharge assistant engineers in the department at pleasure, and the plaintiff’s contention is that this conceded power was not exercised as to her intestate until he received the last communication. It does not follow that because the commissioner in his first letter used the term ■“ suspended ” instead of “ discharged ” that he did not intend to terminate the employment as assistant engineer and to create a vacancy in the office, if it be one, nor does it follow that Wardlaw did not understand from this communication that his services-were no longer required as an assistant engineer. The commissioner had the power to dismiss or discharge, and no partícula: form of words was necessary in order to accomplish that result If he intended to and did communicate to the employee the fact that his services in that capacity were no longer required, and this was so understood by both parties, then a discharge was -effected as completely as if the word had been used. The plaintiff admits that the letter of January 30, 1890, operated t,o discharge her intestate, and no claim is made for salary after that date. But the commissioner had the same power to discharge on the 23d -of July, 1886, and there is every reason to believe from the facts and circumstances of the case that he intended to exercise it in the one case as much as in the other. He used the word suspended in the first letter, and after being informed that there was a claim made that a dismissal was not thereby accomplished, he used the word discharged in the second. If, however, Wardlaw understood from the first letter that his services were no longer required as an assistant engineer, and that compensation was no longer to be paid to him in that capacity, and that such was the purpose of this notice from the commissioner, and both parties acted accordingly, then the first notice operated to terminate the employment, though it was called a suspension instead of a dismissal.

It appears from the record that between July 31, 1886, and January 30, 1890, the period during which it is claimed that the plaintiff’s intestate was holding the office of assistant engineer and entitled to the salary attached to it, though actually performing no duty of that office, he was in the service of the city, under the direction of the commissioner of public works, in another capacity. He was performing the duties of a surveyor in laying out, regulating and grading streets, and possibly in other respects when his services were required. It is stated by the learned counsel for the defendant that he received during the period when it is claimed he was suspended a sum of money considerably in excess of what he would have been entitled to during the same time at the salary of an assistant engineer. This is denied by the learned counsel for the plaintiff, who insists that a large part of the money paid to his client for this work was used to defray the expense of performing it, and that the net sum received was comparatively small. There is proof in the case that after the letter of July 23, 1886, Wardlaw was employed as a surveyor in the capacity above mentioned by the commissioner, that he accepted such employment and was paid a large sum of money therefor. Whether more or less than he would have received as assistant engineer, it is, perhaps, impossible, upon the record, to say, as the expenses, if any, were not shown or deducted from the gross receipts in order to show the net income from such employment. That question was not tried. One of the defenses contained in the answer is that Wardlaw was in fact discharged on the 31st of July, 1886, and that he acquiesced in such discharge and accepted other and different employment from the defendant. At the close of the case the defendant’s counsel asked to go to the jury upon the question whether the acceptance of such enployment from the city, though in another capacity, and the receipt of the compensation therefor during the period for which salary was claimed, was not an abandonment of the office of assistant engineer and a relinquishment of the salary thereof for the other employment The court refused this request and defendant’s counsel excepted. The first letter may not, in a technical sense, have been a good or sufficient discharge. Had the parties understood it as merely a suspension, with the right of the incumbent to draw the salary during the suspended period, and had Wardlaw stood upon this ground, then this claim would be much stronger than it appears to be. But if the commissioner furnished him other employment and he accepted it in lieu of the place of assistant engineer, that would amount to an abandonment of the latter place and a relinquishment of the right to the salary. Whatever may have been the effect of the first letter standing alone and construing it entirely from the language used, yet if the parties treated it as a discharge and entered into new relations and voluntarily terminated or abandoned those formerly existing, the plaintiff must be deemed to-have waived his right to insist upon payment of the salary of assistant engineer and to have vacated the office. It was competent for all the parties to treat the first letter as a discharge, and it is inferable from the subsequent letter of the commissioner that he considered it as such. If the plaintiff, without objection or protest, accepted other employment from the commissioner and was paid therefor, this conduct on his part might justify the inference that he construed it in the same way or elected to abandon the place for some other position or employment. We have not overlooked the admission that appears in the case that Wardlaw, after what is called the letter of suspension, offered his services to the defendant and notified the proper officer that he was ready to go to work. That circumstance is doubtless entitled to proper consideration, but is not conclusive as to the fact of discharge or abandonment. The question still remains whether, at the time he ceased to perform duty as assistant engineer and accepted the other employment, there was any intention on his part to insist upon performing the duties of that office and drawing the salary, upon the ground that the first letter amounted to a mere suspension and not a discharge, and whether that intention was communicated in any way to the commissioner. It may be assumed that had the .commissioner supposed that was to be his attitude he would not put him in a position to draw other moneys from the city for services, and would have promptly removed all doubt as to his discharge by doing then what he did nearly four years later. It was, therefore, we think, a question of fact for the jury to determine upon the letters of the commissioner, the conduct of the parties, and all the facts and circumstances of the case, whether the so-called letter of suspension was not in fact intended as a termination of the relations of Wardlaw with the department as assistant engineer, and was not so understood by him, and whether his subsequent conduct and action did not amount to an abandonment of the office, if there was not a technical discharge.

It was not competent for the court to determine, as matter of law, from the facts and circumstances appearing in the record, that Wardlaw’s position as assistant engineer and his legal right to the salary was unaffected by the letter and his subsequent relations with the defendant, and it was error to refuse to allow the jury to pass upon the question. An officer suspended from the performance of the duties of his office by the appointing power, but not removed, is entitled to the salary of the office during the period of the suspension. Fitzsimmons v. City of Brooklyn, 102 N. Y., 536; 2 St. Rep., 475; Emmitt v. Mayor, 128 N. Y., 117; 38 St. Rep., 907; Gregory v. Mayor, 113 N. Y., 416; 22 St. Rep., 703; Lethbridge v. Mayor, 133 N. Y., 232; 44 St. Rep., 669.

But the suspended officer may waive that right by express agreement or by conduct from which such an agreement or intention on his part may be fairly and reasonably inferred. When he accepts other employment from the appointing or removing power at larger compensation, the inference that there was an intention on his part to abandon the first position would seem to be strong, but even though the compensation in the new position be less, it might still be a question of fact whether he intended to abandon a position from which he could at any time be removed for another that promised more permanent employment, or at least was quite as certain in its tenure or duration. The defendant was deprived by the ruling of the learned trial judge of the right of submitting the facts and circumstances in the case bearing' upon this point for the opinion of the jury. They might also be considered upon the issue as to whether Wardlaw had been in fact discharged on the last of July, 1886. The letter of July twenty-third was not so conclusive in its legal effect or meaning as to exclude the conduct of the parties at the time and subsequently from tire consideration of the jury. If Wardlaw’s subsequent conduct and relations with the city or its officers were such as to justify fairly the conclusion that he had accepted the new employment in place of the old, it might serve to interpret the letter in an inquiry as to whether it was intended and understood on both sides as a dismissal.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur.  