Felix Donnelly, Plaintiff, v. The City of New York, Defendant

Felix Donnelly, Plaintiff, v. The City of New York, Defendant. Leave to appeal to the Court of Appeals—not necessary in actions by a public officer to recover compensation determined by statute. Subdivision 2 of section 191 of the Code of Civil Procedure, in reference to actions . to recover wages, salary or compensation for services, does not apply to a case in which the compensation is determined by statute as an incident to a public office, and in such a case an application for leave to appeal to the Court, of Appeals need not be made. Motion by the plaintiff, Felix Donnelly, for leave to appeal to the Court of Appeals from an order of the Appellate Division affirming a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 1st day of February, 1900, upon the decision of the court rendered after a trial, at the Kings County Special Term. The action was brought to recover a sum to which the plaintiff deemed himself entitled as a portion of the salary attached to his position as engineer of steamers in the fire department of the city of New York. The opinion of the Appellate Division upon his. appeal to that court is reported in 53 Appellate Division, at page 447. John A. Quintard, for the motion. [MAJORITY — Jenks, J.:] Jenks, J.: We think that the language of subdivision 2 of section 191 of the Code of Civil Procedure, with reference to actions to recover wages, salary or compensation for services, refers only to cases where the claim for such wages, salary or compensation arises out of a contract relation, and that the subdivision does not apply to a case like this, where the compensation is determined by statute as an incident to a public office. In Boyd v. Gorman (157 N. Y. 365, 368) the court, per Yann, J., discussing the incorporation of the subdivision in question, say : “ Thus we have progressive action toward the single object of relieving a court overburdened with work. Thé legislature, in the exercise of its power to restrict appeals, wisely selected those classes of actions in which the law has been so well settled for so long a period as to make a second appeal unnecessary, except in rare instances involving new questions, when permission can readily - be obtained.” Actions of character similar to this do not present the reason given by the court for the restriction, inasmuch as they require the construction of express statutory provisions rather than the application of well-settled general principles of law. For these reasons we think that the motion should be denied as not necessary-in this case. Motion denied, without costs. All concurred. Motion for leave to appeal to the Court of Appeals denied.