#### Ellen T. O'Hara, Plaintiff, *v.*The City of New York, Defendant.

(Supreme Court, New York Trial Term,

November, 1900.)

Veteran — Employed as a city watchman and, although incapacitated, carried on the pay-rolls until his death, entitled, by his assignee, to full salary — His status.

Where a veteran, employed by the city of New York as a watchman, after having become incapacitated by illness, sends, to his immediate superior, from time to time reports as to his physical condition and is carried on the pay-rolls of the city until his death, the city must be deemed to have assented to his absence and his assignee may recover salary up to the time of his death.

The position of such a person is analogous to that of a public officer, who, when permitted to be absent, is entitled to compensation until some action is taken in the matter.

Action by plaintiff to recover balance due to her assignor for services as night watchman.

George F. Langbein, for plaintiff.

John Whalen, Corporation Counsel, and Ohas. W. Ridgway, for defendant.

*54McAdam, J.

The plaintiff, as assignee of John Lawrence O’Hara, sues to recover the sum of $170 as salary for services alleged to have been performed by .the assignor between December 16, 1899, and January 28, 1900, and between February 27 and April 10, 1900.

The assignor was a veteran of the Civil War, and the proof shows that he rendered no services to the defendant during the periods named, being incapacitated by an illness which resulted in his death October 27, 1900. It further appears that the defendant continued the assignor’s name on the pay-roll down to the time of his death; that he sent reports as to his physical condition from time to time to his immediate superior; that no one was appointed in his place and was paid his salary or compensation.

It is conceded that the assignor was not a public officer; but the plaintiff claims that, as the effect of recent legislation, the assign- or’s position differed in no degree from one who is a holder of an office created by law; and that, his absence on account of sickness having been permitted, no action having been taken by the proper authorities, his right to compensation was not affected.

In O’Hara v. City of New York, 46 App. Div. 518, which was an action by the assignor to recover from the defendant his salary between October 24 and December 28, 1898, during which period he was illegally deprived of his position (being the same position he held to the time of his death), the court construing the provisions of the law respecting the employment of honorably discharged Union soldiers and sailors in the public service (Laws of 1884, chap. 312, § 1, as amended by Laws of 1896, chap. 821), and of the Greater New York Charter (Laws of 1897, chap. 378, § 127), held, that the plaintiff was entitled to recover. Mr. Justice Rumsey, who wrote the prevailing opinion, said (at p. 522): “ The plaintiff was not a simple employee holding his place at the will of the person who employed him, but his right to his place was regulated by the statute and his time of service was also regulated in the same way. Hor were his duties menial even if that can be said to be material. As a watchman it is fairly to be assumed that he was called upon to use good judgment, and it was necessary that he should be an honest, reliable and trustworthy man. But the nature of his duties is not particularly important. The case turns upon the right which the plaintiff had to the position to which he was appointed; and, so. long us his right to the position *55existed, we think the rule should be applied which has come to be recognized in cases of this kind, that the right to the salary is an incident of the position from which one is irremovable, and as long as the position exists the right to the salary remains.”

The status of the assignor, in reference to his employment, was, therefore, similar to, if not identical with, that of a public officer, and there is no valid reason why the rules applicable to such officer should not govern in this controversy. . While sickness may furnish sufficient reason for the removal of a public officer, when his absence on that account has been permitted he is entitled to compensation until some action is taken on the subject. O’Leary v. Board of Education, 93 N. Y. 1, 45 Am. Rep. 156; Devlin v. Mayor, 41 Hun, 281; People ex rel. Ryan v. French, 91 N. Y. 265; Sleight v. United States, 9 Ct. Cl. 369; Ware v. United States, 7 id. 565. The assignor was carried on the defendant’s pay-roll, the defendant received reports from time to time as to his condition, and not only took no action in the matter, but inferentially assented to the absence.

Whether the assignor was paid a per diem compensation or a weeldy salary is not regarded as of essential importance. The statute of 1896 *(supra)*expressly includes veterans receiving a per diem pay among those entitled to the benefit of its provisions, and while the Repealing Act of 1899 (Laws of 1899, chap. 370, § 21) does not refer to a daily compensation, neither does it allude to a salary, but protects, generally, veterans holding positions by appointment or employment-in the State of Hew York, or in the several cities, counties or villages thereof. As the assignor was one of the class mentioned it would not seem to be very material whether he was paid a salary or a per diem compensation, and for this reason it is not thought necessary to discuss the question raised as to the effect of the judgment in O’Hara v. City of New York, 46 App. Div. 518, in reference to salary.

Judgment for plaintiff for $170, with interest and costs.

Judgment for plaintiff, with costs.