Tyrrell v. Mayor, Etc., of City of New York

• Decision Date: 06 June 1899
• Citation: 159 N.Y. 239,53 N.E. 1111
• Parties: TYRRELL v. MAYOR, ETC., OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

159 N.Y. 239

53 N.E. 1111

TYRRELL

v.MAYOR, ETC., OF CITY OF NEW YORK.

Court of Appeals of New York.

June 6, 1899.

Appeal from supreme court, appellate division, First department.

Action by Alfred J. Tyrrell against the mayor, aldermen, and commonalty of the city of New York. From an order of the appellate division (54 N. Y. Supp. 372) reversing a judgment for defendant, defendant appeals. Reversed.

Appeal from an order of the appellate division of the supreme court in the First judicial department reversing a judgment entered upon the decision of the court on a trial without a jury. This action was brought to recover extra compensation for services rendered by the plaintiff for the defendant on the 47 Sundays which elapsed between April 26, 1894, and March 22, 1895. During this period the plaintiff held the position of section foreman in the street-cleaning department of the city of New York, by regular appointment, at a salary of $1,000 a year, at which rate he has been paid for the whole of the said term of his employment. The trial judge found ‘that the plaintiff performed certain work and rendered certain services on Sundays during that time, as section foreman, for which he has received no additional compensation.’ As a conclusion of law he found ‘that chapter 368 of the Laws of 1894, which provides for extra pay to hostlers for Sunday work, manifests an intention on the part of the legislature to exclude other employés from receiving additional compensation for Sunday work,’ and ‘that, since the right of the plaintiff to recover a verdict for the said Sunday work rests entirely upon the statute above cited, the defendants should have judgment in their favor upon the merits.’ The judgment entered on this decision was reversed by the appellate division, and thereupon the defendant appealed to this court.

Theo. Connoly, for appellant.

John W. Weed, for respondent.

VANN, J.

This appeal brings before us for construction a section of the defendant's charter, which, so far as material to this controversy, is as follows: ‘The annual salaries and compensations of the members of the uniformed force of the department of street cleaning shall be fixed by the board of estimate and apportionment and shall not exceed the following: Of the general superintendent, three thousand dollars; of the assistant superintendent, two thousand five hundred dollars; of the superintendent of stables, two thousand dollars; of the master mechanic, one thousand eight hundred dollars; of the superintendent of final disposition, two thousand dollars; of the assistant superintendent of final disposition, one thousand five hundred dollars; of the district superintendents, one thousand eight hundred dollars each; of the time collectors, one thousand two hundred dollars each; of the section foremen, one thousand dollars each; of the dump inspectors, one thousand dollars each; of the assistant dump inspectors, nine hundred dollars each; of the tug and scow inspectors, one thousand dollars each; of the dump boardmen, seven hundred and twenty dollars each; of the sweepers, seven hundred and twenty dollars each; of the drivers, seven hundred and twenty dollars each; of the stable foremen, one thousand two hundred dollars each; of the assistant stable foremen, nine hundred dollars each; of the hostlers, seven hundred and twenty dollars each, and extra pay for work on Sundays. The members of the department of street cleaning shall be employed at all such times and during such hours and upon such duties as the commissioner of street cleaning shall direct, for the purpose of an effective performance of the work devolving upon said department.’ Laws 1882, c. 410, § 704; Laws 1892, c. 269, § 704a; Laws 1894, c. 368, § 704a. The plaintiff claims that the words ‘extra pay for work on Sundays' apply to all the officers and employés named in that part of the section quoted above, while the defendant claims that those words apply to hostlers only. The position of the plaintiff has been sustained by three of the learned justices of the appellate division, while the trial judge and two of the justices of the appellate division sustained the position of the defendant.

A public officer, who receives an annual salary for his services, cannot recover extra compensation for services rendered on Sunday unless some statute allows it....