
    Charles H. Caldwell, Respondent, v. The City of New York, Appellant.
    First Department,
    December 29, 1911.
    Civil service—New York city—employment on condition of giving an undated resignation—wages — wprk not performed.
    An.honorably discharged soldier employed in the dock department of Hew York city at a daily wage resigned, and within the year during which he was entitled by the civil service rules to be reappointed made application for reappointment. Being informed that he would be re-employed if he would give an undated resignation which could be used when his services were no longer required, he did so and was re-employed. Such employment lasted until October 10, 1907, at which time his services being no longer required his blank resignation was used. In June, 1908, he was ■ again re-employed.
    
      Held, that he was not entitled to recover from the city his wages for the period from October 10, 1907, until his re-employment in June, 1908; That the blank resignation was not .obtained under duress, and that, his position being one where a daily compensation was paid as wages for work performed, he could not recover from the city unless he performed the work.
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of November, 1910, ¡upon the verdict of a jury, and also from an order entered ini said clerk’s office on the same day,- as resettled by an order entered therein on the-19th day of December, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Clarence. L. Barber, for the appellant.
    
      Edwin A. Watson, for the respondent.
   Ingraham, P. J.:

The plaintiff was an honorably discharged soldier, and prior to September 24, 1906, was employed in the department of docks, his wages being two dollars a day. He resigned such employment on September 24, 1906. Under the municipal civil service rules he was entitled to be reappointed any time within one year. On September 23, 1907, he applied to the president of the borough of The Bronx for employment and was told he would be employed if he would give a blank resignation so that if his services were not longer required it could be used. As plaintiff was a veteran he- could not be discharged without a trial except by his own consent. He signed this resignation and was then employed as a night watchman at the municipal court house in the borough of The Bronx, his wages being two dollars a day. He served in that capacity until October 10, 1907, when the date was filled into this resignation which was accepted by the borough president. On June 15, 1908, he was re-employed by the borough president of The Bronx with the sanction of the civil service commissioners as a watchman at the same pay and returned to his own position. No appointment was made to fill this position between October tenth and the following June and we may assume, therefore, that there was no necessity for his services during that period. He now brings this action to recover wages for -the period between October tenth and June twenty-fourth, during which time he rendered no service. He claims that this resignation was obtained from him by duress but it is difficult to see where the duress comes in. He was offered employment on condition that he would sign a resignation which could be used presumably when his services were no longer required and he assented to that condition. The city authorities were not bound to employ him, it was a perfectly frank statement of the reasons why the resignation was required, and I can see no reason why the condition upon which he was employed, namely, that he should give to the officer^ employing him a resignation which could be used when his services were no longer required, was illegal or not enforcible. At any rate he accepted that condition, received his employment upon its acceptance, and when his services were not longer'required that condition was enforced. He was not discharged in the ordinary acceptation of the term, but the condition imposed upon him when he was appointed was enforced and his services were no longer required and no longer rendered. While this resignation stood' unrevoked he ceased to be in the employ of the city, rendered no services, and upon no principle that I can see was he entitled to be paid. The evidence shows that his removal was not for the purpose of putting someone else in his place but simply because his services were not required and, not being required and he having rendered no services and the condition of his employment, namely, a resignation when his services were not longer necessary having terminated the employment, it would seem most unjust to recompense the plaintiff out of the public money for services not rendered. He was re-employed when his services again became necessary and for the services subsequently rendered he has been paid.

This court, both in this department (Shane v. City of New York, 135 App. Div. 218) and in the Second Department (O’Donnell v. City of New York, 128 id. 186) has held that in positions of this character where a daily compensation is paid to an employee as wages for work performed for the city no recovery can be had in the absence of the performance of such work. I think the principle thus established applies to this case.

The judgment and order appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Laughlin, Scott, Miller and Dowling, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  