Perth Amboy evening news., 1920-08-18
DEMAND KURPIEL's MONEY

DEMAND KURPIEL'S MONEY
CONTINUED from page ~
position is suspended without cause.
In the former case the duty falls
upon the employee when suspended
or discharged to promptly seek other
employment in order that his dam
ages may be reduced; and he can
only recover. in the event of suit. for
the difference between the wages
that the employer contracted to pay
him and the wages that he received
during the time of his unwarranted
suspension or discharge. This rule
does not apply in the case of a public
officer, such as Officer Kurpiel, as
he is entitled to his full salary be-
cause of his wrongful exclusion from
his Office. and the right to the Of
fee carries with 1t full salary with
put consideration of the contractual
relation between the city and the
officer.
This rule prevails in the great
majority of the Jurisdiction of the
United States. in .luding the u ,itcd
States supreme court; that an Of
fcer who has been unlawfuily
suspended, is entitled to his full
salary upon reins.aten ent, without
deduction for any earnings of the
claimant during the period OF
suspension.
In the United States Supreme
Court, in the case Of U. S. VS.. Addi-
son, 6 Wall, 291, a Mr.. Crawford
who was improperly suspended or
ousted from office at Georgetown,
prosecuted a writ of error and hav-
ing succeeded, he sued for his SAL
airy by way of damages. 1t was
claimed hat deductions should be
made for the earnings of the plain
tiff during the period of his unlaw-
full custer, and the court said: THE
rule which measures the damage up
on a breach of contract for wages.
or for freight. or for the lease of
buildings, has no application in
these cases. The party agreed must
seek other employment, or other
articles for carriage. or other ten
ants and the damages recovered may
be the difference between the
amount stipulated and the amount
actually received or paid, but no
officers of p~ersonaltrust and conf
dence."
In the case of Fitzsimmons VS..
oAOOh4Jns v ~ - OOoB a PO1AlN-
man was removed from office. The
order of removal was reversed and
the plaintiff restored to his office.
and he sued the city to recover the
salary during the period Of his Illegal
removal. The city admitted its liza
bility, but claimed hat the patrol
mans earnings during the period OF
removal should be deducted. The
trial court and the general term
refused the deduction. and the city
appealed. The Court of Errors and
Appeals of the state of New York,
after recognizing the general rule
that in the event of q breach of con-
tract of employment by the master,
the rva was bound to obtain
other suitable employment il ne
could, and thus to reduce the claim
against the employer. said: But this
rule of damages has no application
to the case of an officer suing for
his salary, and for the obvious rea-
son that there is no broken contract
or damages for its breach where
there is no contract. We have often
held that there Is no contract be-
tween the officer and the state or
municipality by force of which the
salary is payable. That belongs to
him as an incident of his Office. and
so long as he holds it; and when i'm
properly withheld he may u for ii
and cover 1t. When he does SO
he is entitled to its full amount, not
by force of any contract, but be-
cause the law attaches 1t to the Of
fee; and there is no question OF
breach of contract or resultant dam
ages out of which the doctrine in
voked has grown. We think, there
fore, it has no application to the
case at bar. and the courts below
were, right in refusing to diminish
the recovery by applying the wages
earned"
Another police officer case is that
OF "Bulles VS.. Chicago, reported in
235 Ill. 472." The highest court
of the state of Illinois in that case
had this to say:
"The appellant (the city, asked
the court to hold a. the law propo-
sitions to effect that the appellant
was entitled to show, in reduction OF
the damages, the amount of money
earned and received, or that might
with reasonable diligence have been
earned and received, by the appel
lee during the period covered by his
suit. The court properly refused tc
hold these propositions. If appel
lee was legally entitled to the office
of police patrolman. his legal right
to the Office carried with it the right
TO its salary. The salary is Incl
dent to the title to the Office and
not to its occupation and exercise
II appellee was wrongfully prevent
ed from performing the duties of hi
Office he may GOV his salary fol
the time during which he was 81
prevented, where it has not beer
paid to anyone performing the du.
ties of the office. His earnings OF
opportunities to earn during tina
. time were immaterial."
To the same effect is that of Ris
ing VS.. the City of Portland Ore
gon. Supreme Court, 81 Oregon, 81
The only decision that may b.
construed in opposition to the fore
going, is a case in the state of Col
orado, entitled Denver VS.. Bur
i, nett" In this decision the court ev,
identity overlooked the distinction
that is herein pointed out between
master and servant. and a patrol
man employed by a city. II is idle
to suppose that the Supreme Court
IF the United States and such great
legal authorities as to the highest
courts of the states of New York
Illinois and Oregon are incorrect ir
their adjudication on this point.
The decisions of the greatest
courts of the United States being in
eonsonance with the claims of Of
fcer Kurpiel, as his counsel, I de
mand the pay which is due him
without any deduction.
In the fact of the legal authori-
ties cited, 1t is idle for h city &c
oppose the legal demand of Officer
Kurpiel. I trust. therefore. that
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