
    Joseph McGrade, Respondent, v. The City of New York, Appellant.
    Second Department,
    May 1, 1908.
    Municipal corporation—salaries of employees — estoppel.
    An employee of a city, whose salary is fixed hy resolution in the legal manner, is not estopped from claiming his legal due hy receiving a less sum each month.
    Appeal by the defendant, the city of Hew Fork, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff.
    
      
      James D. Bell [Edward Lazansky with him on the brief], for the appellant.
    
      Otto C. Wierum, Jr., for the respondent.
   Gaynor, J.:

The plaintiff was a clerk in the fire department of the city of New York at a salary of $1,500 a year. In 1902 such salary (in ■ common with other salaries) was reduced 10 per cent., i. e., to $1,350 a year. On April 12tli, 1905, the salaries of clerks in the fire department were fixed at from $1,500 to $2,000 a year by a resolution passed by the board of estimate and apportionment and the board of aldermen and approved by the mayor, that being the legal method. The plaintiff thereby became entitled to the said minimum salary of $1,500, but was thereafter paid monthly at the "former rate of $1,350, and this action is to recover the difference. No reason is given for withholding part of his salary. That he received the lesser sum does not estop him from claiming his legal due (Kehn v. State of New York, 93 N. Y. 291).

The judgment should be affirmed.

Woodward, Jenks, Hooker and Rich, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  