Murtagh v. City of New York

Citations

• 106 A.D. 98
• 94 N.Y.S. 308

Syllabus

<p>Action by a patrolman for services — it is an action for a salary and not for services as an employee — under a general denial the presumption that his appointment was valid may be overcome by proof that the limit in the number of the force had, been exceeded.</p> <p>An action brought against the city of New York, as the successor of Long Island City, to recover for services rendered by the plaintiff as a patrolman upon the police force of the latter city, is an action to recover the salary which attaches to an office and is not an action to recover compensation for services ' performed by an employee.</p> <p>It is incumbent upon the plaintiff, in order to recover, to establish his right to the office of patrolman, ‘and every fact bearing upon the validity of. the . appointment is available to the defendant under a general denial, for the reason that,' under such a denial, a defendant may controvert anything which the plaintiff is bound to prove in the first instance.</p> <p>The plaintiff establishes the validity of his appointment prima facie by show-, ing that he was appointed by the police board having authority in the premises.</p> <p>The fact that the charter of Long Island City (Laws of 1871, chap. 461, tit. 5, chap. 5, §’2, as amd. by Laws of 1893, chap. 645) limited the number of patrol- ' men to seventy-five, does not require him to show, in the first instance, that there were not seventy-five patrolmen on the force at the time he was appointed, as he may rely on the presumption that the board which appointed him had proceeded in accordance with the law.</p> <p>The defendant may, however, under its general denial, and without setting it up as an affirmative defence, show that the plaintiff’s appointment Was invalid, for the reason that,' at the time it was made, thqre were more than seventy-five men on the police force.</p>