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

(Supreme Court, General Term, First Department.

December 18, 1895.)

Office and Officer—Discharge—Calling for Resignation.

Plaintiff’s intestate, while employed by the New York aqueduct commissioners as an inspector, was reported by the engineer in charge for intoxication, inattention, and unfitness, and, by direction of the commissioners, his resignation was demanded. From that time he rendered no service and applied for no further pay, though be, applied at different times for reinstatement. *Held,*that the demand for his resignation was in effect a discharge, and his employment ceased from that time.

Appeal from circuit court, New York county.

Action by Kate Ryan, as administratrix of William Ryan, deceased, against the mayor, aldermen, and commonalty of the city of New York. From a judgment entered on a verdict in'favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Reversed.

For former report, see 33 N. Y. Supp. 260.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

James T. Malone, for appellant.,

L. E. Warren, for respondent.

FOLLETT, J.

This action was begun July 15, 1891, to recover the arrears of salary alleged to be due the plaintiff from the defendant. By chapter 490, Laws 1883 (amended by chapters 337, Laws 1886,196, Laws 1887, and 584, Laws 1888),—an act to supply the city of New York with an increased supply of water,—it was provided that certain officers of the city and certain persons named in the act should be “Aqueduct Commissioners,” and empowered to carry the provisions of the act into effect. By the thirtieth section of the act it is provided:

> “The work and materials called for by said contract shall be done and furnished under the direction and supervision, and subject to the inspection of the said aqueduct commissioners, their engineers, supervisors and inspectors.”

By the thirty-first section it is provided:

> “The salaries and compensation of the persons employed, as provided for in this act, to prepare the necessary surveys, plans and estimates, and to direct, supervise and inspect the work required to be done under the provisions of this act, * * * shall be paid by the comptroller of the city of New York, on the certification of the said aqueduct commissioners, or of such person or persons as may be designated by them.”

By the fortieth section it is provided:

> “Sec. *40.*No person shall be appointed by the said aqueduct commissioners as inspector or superintendent, who shall not be certified by at least three members of the commission to be competent and fit for the duties of the position for which he is an applicant and experienced in the subject matter of the employment.”

These are the only provisions in the act relating to the employment and compensation of the employés of the aqueduct commissioners. June 8,1887, the plaintiff’s intestate, by a resolution of the aqueduct *316•commissioners, was employed or appointed as an “inspector of masonry,” and June 10,1887, he filed an oath of office with the aqueduct commissioners, and July 21, 1887, he entered upon his duties. For July, he was paid for 11 days’ service; in August, he was paid for :2S days; in September, for a month’s service; and in October he was paid for service up to the 24th,—at the rate of $120 per month. The plaintiff, for the purpose of establishing her cause of action, introduced a letter of the division engineer, dated October 25, 1887, addressed to the chief engineer, in which it is stated that yesterday morning, October 24,1887, William Ryan reported for duty, about 10 a. m., considerably intoxicated; that he was reprimanded, and told that he was to be suspended; and that Ryan replied that if he was going to do it, he had better do it at once, as he wanted to go to the city for a week. It was also stated in this letter that Ryan was •otherwise insubordinate, and that he had caused considerable trouble while on duty when under the influence of liquor. The letter further stated that he was of no use on the work. Upon the receipt of this letter the chief engineer asked that the resignation of Ryan be ■demanded. At a meeting of the aqueduct commissioners held October 26,1887, a resolution was adopted directing the. chief engineer to ask for the resignation of Ryan. Upon this resolution the chief engineer, on the 27th of October, 1887, directed the division engineer to require that “the resignation of Inspector William Ryan be demanded forthwith.” On the next day the division engineer delivered to William Ryan a letter referring to the action of the commissioners •on the 26th of October, which concluded as follows: “I hereby call upon you for your resignation forthwith.” It does not appear that, after October 24, 1887, William Ryan ever performed any service as an inspector of masonry, or that he ever offered to perform such service, but it does appear that on many occasions subsequent to the date mentioned he applied to be “reinstated” as an 'inspector of masonry, which was never complied with. Neither does it appear that William Ryan ever received or asked for a certificate for work done, as provided by the portion of section 31 above quoted. The employés of "the aqueduct commissioners are not the employés of the city, but of an independent body. December 19, 1889, the following letter was written and delivered to Ryan:

> “New York, Dec. 19, .1889.

> “William Ryan, Esq., One Hundred and "Tenth Street and Boulevard-Dear Sir: At a«stated meeting of the aqueduct commissioners, held on the 18th instant, it appearing that your services would he no longer required as an inspector of masonry, you are dismissed from the service of said commissioners.

> “Respectfully, John O. Sheehan, Secretary.”

Upon this evidence the learned trial judge submitted to the jury the question whether the commissioners and Ryan understood that the action taken amounted to a discharge. The jury decided this question in favor of the plaintiff, and rendered a verdict for $4,126.20, which was based on the theory that Ryan was entitled to compensation at the rate of $120 per month from October 24, 1887, to December 19, 1889, the date of his formal discharge. Assuming, as we must, that Ryan was an “officer” (Emmitt v. City of New York, 128 *317N. Y. 117, 28 N. E. 19; Meyers v. City of New York, 69 Hun, 291, 23 N. Y. Supp. 484), we are of the opinion that this verdict is contrary to the evidence. From the nature of the charge preferred against Ryan, that he was incompetent by reason of intoxication and insubordination, it must have been understood by him, as well as by the commissioners, that the demand for his resignation was tantamount to a discharge. From this time to the date of the formal discharge, which was evidently induced by certain decisions which had been made, Ryan performed no service for the commissioners, and, so far as it appears, he did not report at the work as ready and willing to serve in the capacity in which he had previously been employed. Under the act, inspectors of masonry do not seem to be entitled to any greater consideration than laborers, or any of the other employés of the commissioners. There is no period of service fixed by the statute, and their employment is for such time as the commissioners may deem wise. There was no conflict in the evidence, and we think the jury erred in the inference which it drew therefrom, and that the trial court erred in denying the defendant’s motion for a new trial, made on the minutes, upon the ground that the verdict was contrary to the evidence.

The judgment and order are reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.