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Supreme Court, March, 1904.

New York, 33 Misc. Rep. 53. The same rule is held in relation to a dockmaster. Alsberge v. City of New York, 75 App. Div. 360. Also to a teacher in a public school. Steinson v. Board of Education, 165 N. Y. 431, affg. S. C., 49 App. Div. 143; Murphy v. Board of Education, 87 id.

277.

It is possible that, had the plaintiff reported to the defendant his condition from time to time, and the department had acquiesced in his exemption from labor, there might be some force in the position that he would be entitled to pay, at least for a reasonable time, upon the ground of waiver, as in the case of the uniformed force of a street department. Downs v. City of New York, 75 App. Div. 423; Driscoll v. City of New York, 78 id. 52.

There is no evidence in this case that from the time of his injury, April 24, 1900, down to the 12th day of September, 1901, he ever reported to the defendant corporation, or any of its officers; and while his name was continued on the employment record, his absence was noted, opposite his name; and this situation is inconsistent with the probability that the department acquiesced in, or consented to, his absence, as a wage-earning employee. This of itself is sufficient to create a suspension of the relation of employer and employee until he presented himself again for work. Nor was the plaintiff in the position of an employee unlawfully discharged from service, so as to create a breach of contract. Steinson v. Board of Education, 165 N. Y., supra; O'Hara v. City of New York, 46 App. Div. 518; S. C., affd. in 167 N. Y. 567; Van Valkenburgh v. Mayor, 49 App. Div. 208; Holt v. City of New York, 35 Misc. Rep. 642.

The trend of authorities is against the rule of recovery of compensation for services which have not been actually performed, unless there has been a breach of contract; especially is this the rule in those cases where the class of labor must be performed by others, employed during the time of the employee's disability. Terhune v. Mayor, 88 N. Y. 247. This rule holds good even as to a public officer, suspended or superseded by another. Higgins v. Mayor,

Supreme Court, March, 1904.

[Vol. 43.

131 N. Y. 128; Sullivan v. Mayor, 135 id. 647; Demarest v. Mayor, 147 id. 203; Graham v. City of New York, 167 id. 85.

66

The memoranda entered on the pay-rolls opposite the plaintiff's name, absent," "no time," must be held as indications that the plaintiff was relieved from duty; and, for the purpose of drawing a per diem compensation, it must be held as equivalent to a discharge, suspension or relief from duty, upon the theory of "no work, no pay." Cook v. Mayor, 9 Misc. Rep. 338; S. C., affd. in 150 N. Y. 578, Mem. This doctrine is sustained in Graham v. City of New York, 167 N. Y. 88.

The case at bar does not fall within Devlin v. Mayor, 41 Hun, 281, which was a case of a bookkeeper who was working on a salary. He reported from time to time, and his name was kept on the monthly pay-rolls, although a line of red ink was run through the words "absent all the month, sick, without pay." The fact that Devlin was discharged was never communicated to him, and there it was held that he was entitled to his salary, upon the theory that the omission to notify him, upon his frequently reporting at the office, was a circumstance from which he might well infer that his leave of absence was continued by consent, based upon the principle laid down in O'Leary v. Board of Education, 93 N. Y. 1.

In the case at bar an additional element enters into the right to recover. The resolutions introduced in evidence on behalf of the defendant show that compensation was to be given only for actual service performed, and it was by the resolutions that the employment and reappointment of the plaintiff were authorized and continued by the defendant. Murphy v. Board of Education, 87 App. Div. 277, supra.

Independently of those resolutions, I think that it is clearly against public policy, and beyond the authority of the board of education, to place any day laborer upon its pay-roll, conceding that to be the situation in this case; keep his name there for nearly a year and a half, while that laborer is under absolute disability to perform any work at all; and during which time he has never reported to the

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Supreme Court, March, 1904.

board; and, so far as the evidence shows, he had never demanded pay during that period.

The rule has always been in force that the illness and disability of a party to perform his contract for personal services is a valid excuse for suspending payment of wages, and may justify an absolute discharge.

In my judgment a contract by the defendant corporation to pay wages under those circumstances would be absolutely void, and could only be enforced against the individual personally making such a contract, based upon some valid consideration moving between the parties.

This man was not injured nor disabled by the defendant corporation, or through its negligence, but he was injured. by the unlawful and willful act of a fellow-servant, not in the performance of his duty to the corporation, but in violation of that duty and outside of his employment. Levy v. Ely, 48 App. Div. 554; Isaacs v. Third Ave. R. R. Co., 47 N. Y. 122; Mott v. Consumers' Ice Co., 73 id. 543; Craven v. Bloomingdale, 171 id. 439, revg. S. C., 54 App. Div.

266.

There was no evidence to show that the servant injuring plaintiff was an incompetent or improper servant, nor that the master had any notice that he was not a perfectly proper man for the service.

The complaint must be dismissed, and judgment is ordered in favor of the defendant, with costs.

Complaint dismissed and judgment ordered in favor of defendant, with costs.

Supreme Court, March, 1904.

[Vol. 43.

MARIA L. FREELAND, Plaintiff, v. THE BROOKLYN HEIGHTS RAILROAD Co., Defendant.

(Supreme Court, Kings Trial Term, March, 1904.)

Negligence When it is a question of fact-Duty of a street surface railroad company to leave the street in a reasonably safe condition. Where the proof, made by a passenger upon a street surface railroad car in an action to recover damages of the corporation operating the car for personal injuries sustained by its alleged negligence, tends to show that the car was moving rapidly, that he would not have been injured had not the attempt of the driver of a truck, approaching on the same track, to get out of the way of the car been defeated by a wheel of the truck catching in a disused frog in the track thus causing the truck to swerve on snow and ice and hit the car it is a question of fact for the jury whether the defendant left the street, at the point where the frog was, in a reasonably safe condition.

One making use of a public street, which was safe prior to that time, is not at liberty to construct there a track which cannot be operated and used, by the traveling public, with reasonable safety.

ACTION of negligence. Motion for a new trial upon the minutes.

James C. Cropsey, for plaintiff.

Clarke Day, for defendant.

FORBES, J. This is an action of negligence. The action was brought in Part III, before a jury.

The plaintiff was a passenger riding upon one of the defendant's street cars, going down a grade in the direction of Fulton Ferry. A portion of the street was being occupied by wagons unloading in front of a warehouse on the righthand side. A cart driver, having a high and heavy load of coke about three and a half tons was approaching the car on the same track; the driver turned out on the righthand side to get out of the way of the car, when one of the truck wheels caught against a frog constructed in the defendant's track, on a curve at or near Sands and Fulton

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Supreme Court, March, 1904.

streets, in Brooklyn. After the team had passed by the front part, and partly along the car- the car running, as the plaintiff claims, at a high rate of speed - the driver's wagon slewed around upon the snow and ice, the upper part of the wagon-box striking the car, breaking two or three of the stanchions, and thus driving these pieces and the glass from the windows of the car, upon the plaintiff, who was sitting on that side of the car, and in this manner the injuries were caused for which the action is sought to be maintained.

The jury rendered a verdict in favor of the plaintiff for $450 for the injuries sustained.

A motion was made for a new trial upon the minutes, under section 999, Code of Civil Procedure, and the question arises whether there was a question of fact for the jury.

A case is cited by the defendant's counsel, reported in Alexander v. R. C. & B. R. R. Co., 128 N. Y. 13, arising in the city of Rochester, N. Y. The defendant claims that the facts of the case cited are exactly in point.

The case at bar was submitted to the jury upon the theory that the car was running at a high rate of speed; that the driver was on the right side of the track; that the motorman of the defendant corporation was careless and inattentive to his duty, and that the accident probably would not have occurred, as shown by the testimony of the defendant, had not the wheel of the coke wagon caught upon an abandoned frog lying in the defendant's track, which thus caused the wagon to slew around, break the window and caused the injury. There were two concurrent causes which contributed to the injury.

It is asserted, on the part of the defendant, that there was plenty of room to pass, had the driver performed his duty and that, with the snow and ice upon the track and upon the street, the motorman was not bound to apprehend that the accident might occur, and that he used reasonable care and caution in proceeding on his way in the discharge of his duty.

The difficulty about the proposition is, in my judgment, hat the proximate cause was not the snow and ice upon