Nathan Ginsberg, Respondent, v. City of Long Beach, Appellant

Nathan Ginsberg, Respondent, v. City of Long Beach, Appellant. [MAJORITY] Action to recover for services rendered as health officer of the city of Long Beach. Judgment, as corrected by order dated June 20, 1940, rendered in favor of plaintiff after trial by the court without a jury, modified by striking therefrom the sum of “ $1320.49 ” and inserting in place thereof the amounts $15.45, $20.83 and $150, plus interest on $75 from January 31, 1938, and on $75 from February 28, 1938. As thus modified, the judgment, as corrected, is unanimously affirmed, without costs. The trial court relieved the parties of the effect of the stipulated facts in so far as they are inconsistent with the facts shown by the evidence. The undisputed evidence is that the office was vacant prior to October 9, 1937, by reason of the plaintiff’s failure to qualify as to fitness and merit, although twice given extensions of time by the State Health Department to do so. The only material appointment in suit, therefore, is the appointment of October 9, 1937, which was for a period ending on May 31, 1938. The city council had a right to fix the compensation for the office. Plaintiff is entitled to compensation at the rate of $250 per annum for the partial month’s services in October, 1937, and in the whole month of November, 1937, being $15.45 and $20.83, respectively. Such amounts were tendered and refused, and no interest can be allowed. Interest will be allowed on the compensation for the months of January and February, 1938. Present — Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ. Settle order on notice.