Campbell v. Lindsay , 48 A.D.2d 621 ( 1975 )

Judgment and order (one paper), Supreme Court, New York County, entered on October 31, 1974, awarding plaintiffs recoveries for such periods of time as plaintiffs can establish they performed duties as commanders or supervisors of detective squads, unanimously modified, on the law, so as to strike the fifth and sixth decretal paragraphs as unnecessary and to broaden the terms of the ninth decretal paragraph to permit the defendants to answer without limitation, and otherwise, the judgment and order (one paper) is affirmed, without costs and without disbursements, for the reasons stated by Greenfield, J. at Trial Term. Plaintiffs Baccaglini, Fullam, Yost and Yuknes should be treated the same as the other plaintiffs. There is no competent evidence in the record to justify a direction that they are to be paid the differential beginning with the time they began to serve in the squads they now command or supervise under designation by the Police Commissioner. Like the other plaintiffs, they should be put to their proof of their de facto service as provided in the eighth decretal paragraph of the judgment. The defendants’ right to answer should not be limited to the issue of whether any particular plaintiff was serving as a commander or supervisor of a detective squad. Such limitation wrongfully deprived defendants of the opportunity of advancing other possible defenses such as the Statute of Limitations, failure to sign paychecks under protest, etc. (Cf. Matter of Rein v Wagner, 25 AD2d 356, affd 18 NY2d 989.) We have noted plaintiffs’ statement that no money damages are sought against the Mayor or Police Commissioner, their waiver of any such claim and their consent to modify the judgment and order appealed from to provide that the City of New York is the sole defendant liable for such money damages as may result from this action. Upon such consent, the judgment and order is further modified accordingly. Settle order on notice. Concur—Stevens, P. J., Markewich, Kupferman, Murphy and Nunez, JJ. [78 Mise 2d 841.]