
    Edward Fox, Appellant, v. The Mayor, etc., of New York, Respondent.
    (New York Common Pleas—General Term,
    February, 1895.)
    Plaintiff, who was employed as an inspector of masonry -on ithe aqueduct, was suspended by the chief engineer and his pay stopped, but was reinstated within a month. He was again suspended from duty in about " three months, with a request for his resignation, and notice that if he did not* resign his name would be sent in for removal. He was'again reinstated in the fall, and performed services until February/ when he was again suspended, and was not thereafter restored. -He performed no services during the periods of suspension. In an action to recover the salary for such periods, held, that the submission to the jury of the question as to whether or not what was designated in the notices as a suspension was in reality a suspension, or a discharge, and as to the understanding of the parties in relation thereto at the time, was proper.
    The board of aqueduct commissioners had power, under the act creating: it, to adopt reasonable by-laws to govern the business to be conducted.
    Resolutions providing that inspectors should devote their whole time to their duties, and that they should be paid only for the time they were on duty on the work, are reasonable.,
    Appeal by the plaintiff from a judgment rendered in his favor at a trial term, and from an order denying his mbtion for a new trial.
    
      Louis 0. Van Loren, for appellant.
    
      William H. GlarTc and James T. Maloney, for respondent.
   Bookstaver, J.

This action was brought by the plain-

tiff to recover $3,145.78, with interest thereon from the 18th day "of December, 1889, for services alleged to have been performed by him as an inspector of masonry on the new aqueduct. From the record it appears that on the 27th of October, 1886, the plaintiff was appointed an inspector of masonry, to act' under orders of the chief engineer and his assistants on the line of the new aqueduct, and was assigned to duty on the 30th of October, 1886; that the aqueduct commissioners, on the 21st of July, 1886, by a resolution, provided for a committee of construction, consisting of five commissioners, which should be an executive committee of the aqueduct commissioners, with full power of direction and supervision over the work of construction and over the engineers, officers and employees engaged therein. On the 23d of ¡November, 1886, that committee passed the following instruction and rule for inspectors of masonry, brick and other work in the employ of the commission: “ Sec. 5. Inspectors are. employed and paid by the month, and their whole time must be devoted to their duties.” And on the 6th of January, 1888, the aqueduct commissioners adopted a resolution as follows : “ That on and after J anuary 1st, 1888, all inspectors that are employed by the aqueduct commissioners, are only to be paid for the time they are on duty on tlie work.” Under this employment sad these rules the plaintiff performed the wqrk from the 30th of October, 1886, until March 10,. 1887, when, by an order of the chief engineer, he was suspended and his pay stopped. On the twenty-first of the month last mentioned plaintiff was.reinstated and restored to work, which he continued until the 16th of June, 1887, when the chief engineer again suspended him from duty and requested him to resign from further employment, and notified him that in case he failed to do so his ■discharge would be recommended to the commissioners. On the fourteenth of September in the same year he was reinstated and resumed work, but the record shows that he per- ■ formed no services from March ninth to March twenty-first and from June fifteenth to September fourteenth^ and received no pay for that time. After September he <Ed- perform services and received pay until the 3d of February, 1888, when he was required to appear before his division engineer, who thereupon said to him,, “ I suspend yap,” .and ■•after this date he was never restored to duty, nor did he do -•any work as an aqueduct inspector. Meanwhile, and on January 8, 1888, he was notified by the chief engineer, that at a. '.meeting of the committee on construction • of the aqueduct,-held January 4, 1888, the following resolution was adopted and was promulgated for his instruction and guidance as- well as others: “ Resoboed^ That on and after January 1st, 1888'%, . all inspectors employed by, the aqueduct commissioners, are-only to be .paid for the. time they are on duty on the work, and in case any inspector, after once having been suspended or transferred for inefficiency or improper conduct, should again be complained of by the division engineer in charge, said division engineer shall give him- his time and report the name ■of such inspector -for discharge by the commissioners,”

When the evidence was all in, the plaintiff moved, for the direction of a verdict for the full amount of $3,387.78, which was denied and an exception taken, and the court left it to the jury to decide whether the plaintiff had been discharged or not, and the. jury found a verdict for the plaintiff for $121, being his salary for one month. From the judgment entered, on this verdict this appeal is taken.

On behalf of the plaintiff it is strongly urged that Gregory v. Mayor, 113 N. Y. 416, and Emmitt v. Mayor, 128 id. 117, are decisive of this question and entitle the plaintiff to a direction in his favor for the periods during which he claims he was suspended merely and not discharged. Defendant, on the other hand, insisting that the several suspensions were in effect discharges. But we think there is a clear distinction between the case under consideration and the cases above cited. In Gregory v. Mayor the plaintiff was an excise inspector, who had been appointed to an office which was permanent in its character, at a per annum salary; he was suspended and not discharged, and the court, in substance, held that while he had the undisputed title to the office he was entitled to the salary. The whole reasoning in that case seems to us to be predicated upon the fact that the plaintiff held title to an office permanent in character, and which was • .a part of the system of the local government provided for by the charter, and hence it was impossible to suspend a public officer without vacating the office. In the Emmitt case it was held that there was in fact no such thing as suspending a public officer without discharging him, and that unless the employee is discharged his pay goes on; and that while the term of office was at the pleasure of the commissioners, they could not effect, arbitrarily, temporary or indefinite suspension without pay. But, in that case, it was further held that it was competent for the commissioners to enter into an agreement with the plaintiff in relation to his salary. In that case also the fact was apparent, from the conduct and actions of the plaintiff and defendants, that the relation of employer and employee existed and had not been interrupted by the suspension. In this case it was expressly left to the jury to determine whether or not what was designated in the notices as a suspension was in reality a suspension, or a discharge, and what the understanding of the parties was at the time. And the jury having determined upon sufficient evidence that tho notice was in réality a discharge it. is conclusive upon the plaintiff. But even if the case last commented on was analogous to the one at bar, which we think we have now shown is not the fact, the full force of that decision has been modified by the opinions delivered in Lethbridge v. Mayor, 133 N. Y. 232, and Wardlaw v. Mayor, 137 id. 194. In the first of these cases the Court of Appeals says: “ Whether this notice (a letter addressed by the commissioners to the plaintiff stating ‘you are hereby suspended from 'the position of clerk from this date’) was called a suspension or a dismissal is of very little consequence. It operated to terminate the plaintiff’s employment and right to salary from that date.” In the case last • cited, where two letters were written at an interval of about two years, the one using the word “ suspended ” and the other “ discharged,” the court says : “ 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; * * * nor does it follow that W ardlaw 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 particular form of words was necessary in order to accomplish that result. If he intended to and did com- ■ municate 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.” On this point see, also, Kelly v. Mayor, 70 Hun, 208. These decisions fully warranted the learned judge at -trial'term in submitting the question of the understanding of the parties as to whether the notices operated as a suspension merely, of a discharge, to' the jury for their determination, and also justified him in refusing to grant a new trial or vacate the verdict.

The fact that the jury found a verdict for one month’s salary in favor of the plaintiff in no way affects this question. They may have found that the first did not operate as a suspension; and gave him. his salary for the period when he was merely suspended. The verdict clearly establishes the fact that the last notice was. understood both by the plaintiff and the defendant as a discharge and not a suspension. If the jury found their verdict for $121 on any other theory than the one above suggested, the defendant and not the plaintiff was injured thereby.

The notices of suspension of March 10, 1887, and June 16, 1887, were properly admitted in evidence over plaintiff’s objection, as bearing directly upon the question as to whether or not the plaintiff was discharged and had had notice thereof.

The exception to the admission of a copy of the resolution of the committee on construction sent to the plaintiff was not well taken. The board was created under the provisions of chapter 490, Laws of 1883, and one cannot read that act without being struck with its independent features and the evident design on the part of the legislature to repose in the aqueduct commissioners an unlimited and unqualified judgment and discretion in the hiring of employees and the selection of detailed employments to enable them to carry out the provisions of the act. When dealing with the question of employees, section 40 goes so far as to provide that no person coming with the requisite certificate from the civil service shall be appointed inspector or superintendent unless his qualifications shall be in addition certified by at least three of the aqueduct commissioners. It cannot be seriously argued that the board created by that act had no power to pass the resolutions and by-laws they did. There is no restriction or limitation upon the board in that respect, and it would necessarily follow that the board had power to adopt reasonable by-laws to govern the business to he conducted, and it seems to us that the by-laws and resolutions passed by the board and offered in evidence were eminently reasonable and wholesome.

The judgment should, therefore, be affirmed, with costs.

Bischoff and Giegerich, JJ., concur.

Judgment affirmed, with costs.  