General

Martin M. Spencer, Respondent, v. City of New York, Appellant

279 A.D. 1021·New York Supreme Court, Appellate Division·1952·NY

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Opinion

Martin M. Spencer, Respondent, v. City of New York, Appellant. [MAJORITY] Judgment on the pleadings (Rules Civ. Prac., rule 112) should not be granted where material allegations of the complaint are denied by the answer. A cost of living bonus may be included in the phrase, “ salary or compensation ”, as used in subdivision 1 of section 245 of the Military Law, but only when such bonus has been lawfully awarded or appropriated. The extracts from the resolutions of the appellant’s board of estimate, together with the arguments presented by appellant, are persuasive that there was no cost of living bonus awarded, but the persuasion is merely prima facie. Respondent is entitled to an opportunity to establish the material allegations of the complaint which have been denied. Appellant concedes that the respondent is entitled to the ordinary statutory increments to salary. Nolan, P. J., Carswell, Johnston, Adel and Schmidt, JJ., concur.