Kaminsky v. City of New York
| Decision Date | 18 February 1964 |
| Citation | 20 A.D.2d 692,246 N.Y.S.2d 780 |
| Parties | Stanley KAMINSKY, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
V. J. Herwitz, New York City, for plaintiff-appellant.
A. Weinstein, New York City, for defendant-respondent.
Before BOTEIN, P. J., and BREITEL, RABIN, EAGER and WITMER, JJ.
Order, entered on January 21, 1963, denying plaintiff's motion for summary judgment and granting defendant's cross-motion for summary judgment and dismissing the complaint, and the judgment entered upon said order on January 28, 1963, are unanimously reversed, on the law, and summary judgment is directed in favor of plaintiff, without costs. Plaintiff, a patrolman in the Police Department of the City of New York, was suspended without pay pending trial of departmental charges against him. After a hearing he was found guilty by the Police Commissioner and dismissed from the department. The Commissioner's determination was thereafter annulled by order of this court and plaintiff was restored to duty. Plaintiff has since been paid his accumulated salary for the period between the date of his suspension and the date of his restoration to duty, less, however, an amount equal to his earnings during that period from other employment. This action is brought to recover the latter amount. Section 77 of the Civil Service Law, if controlling as to police officers of the City of New York situated as the plaintiff herein, would warrant the deduction of earnings from outside employment. The City, however, does not contend Section 77 is applicable. Accordingly, recovery would appear to be mandated by Fitzsimmons v. City of Brooklyn, 102 N.Y. 536, 7 N.E. 787, despite the City's impressive argument that Section 77 express a legislative policy warranting reconsideration of Fitzsimmons in the aspect here involved.
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