Swartwout v. City of New York
| Decision Date | 26 June 1975 |
| Citation | 48 A.D.2d 341,369 N.Y.S.2d 865 |
| Parties | George J. SWARTWOUT, Respondent, v. CITY OF NEW YORK, Appellant, and Albert Pomeroy et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
W. Bernard Richland New York City (Daniel B. O'Donnell, Kingston, of counsel), for appellant.
Francis R. Paternoster, Walton (Terence P. O'Leary, Walton, of counsel), for respondents.
Before HERLIHY, P.J., and SWEENEY, KANE, MAIN and REYNOLDS, JJ.
Beginning in August of 1955, the City of New York condemned several pieces of property in Delaware County for the purpose of increasing its water supply through the construction of the Cannonsville Reservoir. Eleven of these plaintiffs were employed at the Cannonsville creamery, a subsidiary of Queens, Farms Dairy, Inc., and they lost their employment when the creamery property was condemned. Another plaintiff lost his employment with a sawmill operator and still another, an ordained Presbyterian minister, lost his pastorate as a result of the condemnation of other parcels for the same project.
These 13 plaintiffs commenced actions against the City of New York pursuant to section K51--44.0(c) of the Administrative Code of the City of New York which provides in pertinent part as follows A person employed in a manufacturing establishment, or in an established business or upon any lands * * * which manufacturing establishment, established business or lands is injured or destroyed because of the acquisition by the city of an additional water supply * * * shall have a claim for damages against the city equal to the salary paid such employee for the six months immediately preceding such injury, destruction, taking or acquisition. Such damages may be determined by agreement with the board of water supply. In case such agreement can not be made such employee may maintain an action against the city in the supreme court to recover such damages, not, however, to exceed the sum of wages paid him for the six months preceding such injury, destruction, taking or acquisition.
Contending that 'wages' and 'salary' as used in this section are not to be given a restrictive interpretation, plaintiffs claim, in at least one or more of the cases, that they are entitled not only to their monetary remuneration for the six months period, but also the amount which their employer had contributed for pension and welfare benefits; monetary equivalent for their right to milk or wood; and compensation received for shop steward's commissions. Urging that section K51--44.0(c) must be given a restrictive meaning, the defendant maintains that these items are not to be considered and further asserts that those among the plaintiffs who received unemployment insurance benefits should have their awards reduced to the extent of the benefits received. The trial court found that the plaintiffs were entitled to have the monetary amounts of the claimed benefits included in their respective awards for damages and, upon the authority of Eckert v. City of New York (270 App.Div. 642, 62 N.Y.S.2d 220), precluded consideration of the unemployment insurance benefits in mitigation of damages. The defendant appeals from both of these findings.
We agree with the trial court that the defendant should not be permitted to receive credit for the unemployment insurance benefits paid to some of the plaintiffs. While not directly in point, the case of Eckert (supra) holds that the damages as provided for in section K41--44.0(c), now K51--44.0(c), may be considered as comparable to liquidated damages subject to proof of the amount of salary for the six months period. Stated differently, it holds that damages are limited to salary and wages and that the increased salary paid to a victim of the City's condemnation procedures who finds other employment may not be shown to mitigate his or her damages. Unemployment insurance benefits are somewhat analogous to increased salary in this context, and neither...
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Affetto v. TRW, Inc.
...statutes which are different from the one before us. In each case the purpose of the statute was considered. Swartwout v. City of New York, 369 N.Y.S.2d 865, 48 A.D.2d 341 (1975). In a statute providing that an employee who is injured by the city's condemnation of his place of work shall ha......