Citations
- 265 A.D. 162
Full opinion text
Close, J.
The plaintiff, who had been employed by the defendant, County of Westchester, as a Deputy Sheriff and jail guard, was inducted into the United States Army in April, 1941, pursuant to the Selective Training and Service Act of 1940 (U. S. Code, tit. 50, appendix, § 301 et seq.) Upon the approval by the President in August, 1941, of the Act of Congress (55 U. S. Stat. 621) permitting the release of inductees over the age of twenty-eight years from active service and providing for their transfer to the Enlisted Beserve Corps, the plaintiff, being over that age, was transferred to the Enlisted Beserve Corps and thereupon resumed the performance of his duties as an employee of the defendant. On January 23,1942, having been recalled to active military service, the plaintiff obtained a leave of absence from his employment pursuant to the provisions of section 246 of the Military Law (Cons. Laws, ch. 36). He commenced such ordered military service on January 24, 1942, and thereafter instituted this action to recover from the defendant his salary for the first thirty days of his ordered military service, claiming to be entitled thereto by virtue of the provisions of section 245 of the Military Law. That section, as it existed in January, 1942, conferred certain benefits, including the relief here sought by the plaintiff, upon every public officer and employee ££ who is a member of the national guard or naval militia, or a member of the reserve corps or force in the federal military, naval or marine service,” during the absence from his employment ££ of any such officer or employee, while engaged in the performance of ordered military or naval duty as a member of the national guard or naval militia, or as a member of the reserve corps or force in the federal military, naval or marine service,
The defendant contended that the plaintiff was not a member of the “ reserve corps or force ” in the Federal military service within the meaning of such term as employed in section 245 of the Military Law. In granting plaintiff’s motion for summary judgment the Special Term declared that the language employed in the statute was too clear for construction and that no retroactive effect could be given to chapter 727 of the Laws of 1942, effective May 8,1942, which amended section 245 of the Military Law by providing that the section 16 shall not apply to any officer or employee inducted into military or naval service pursuant to the federal selective service act of nineteen hundred forty, or any amendment thereto, nor to any officer or employee, so inducted, who is. discharged from, and thereafter recalled to, active service.”
“ Construction by the court will not be resorted to when the words employed by the Legislature have a definite and fixed meaning, and the purpose and intent