Fitzsimmons v. City of Brooklyn
| Citation | 7 N.E. 787,102 N.Y. 536 |
| Parties | FITZSIMMONS v. CITY OF BROOKLYN. |
| Decision Date | 01 June 1886 |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from judgment general term of city court of Brooklyn, affirming a judgment in favor of plaintiff.
John A. Taylor, for appellant, City of Brooklyn.
Chas. J. Patterson, for respondent, Edward Fitzsimmons.
This case presents the question whether an officer entitled by law to a fixed annual salary, but prevented for a time by no fault of his own from performing the duties of his office, and earning during that time the wages of another and different employment, must deduct them from his recovery when he sues for his unpaid salary. It is quite true that the question is not raised by the pleadings, but no objection was interposed on that account. The necessary facts were proved or admitted, and upon them the question was presented to and decided by the trial court, and an exception taken to that decision. If the question of pleading had been raised, the difficulty might have been obviated, and an issue tried and determined by the consent of both sides, irrespective of the shape of the pleadings, cannot be thrust out of the case upon an appeal.
The plaintiff was a policeman of the city of Brooklyn, duly appointed to that office, and having entered upon the performance of his duties. He was attempted to be removed from officeby the police commissioners, but upon a certiorari the order of removal was reversed, and the plaintiff restored to his office. Between the order of removal and that of restoration he rendered no service as policeman, because not permitted so to do, but during the interval resumed, for a time, his old occupation as a machinist, and, that failing, engaged in work at Schutzen park, the character of which is not disclosed; and from these two sources earned, during the period of his removal, the sum of $500. The defendant conceded that plaintiff was entitled to recover the unpaid salary of his office, but insisted that his earnings of $500 should be applied upon and deducted from it. The court refused the deduction, the general term affirmed the judgment, and the defendant brought this appeal.
The rule sought to be applied by the city to the claim of the plaintiff finds its usual and ordinary operation in cases of master and servant, and landlord and tenant,-relations not at all analogous to those existing between the officer and the state or municipality. The rule in those cases is founded upon the fact that...
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...a public officer for the purpose of recovering salary accruing during the wrongful separation. See, also, Fitzsimmons v. City of Brooklyn, 102 N.Y. 536, 7 N.E. 787,55 Am.Rep. 835. It must be noted that these cases were decided under statutes differing from the one before us and under quite ......
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