97 N.Y.S. 1123 | N.Y. App. Div. | 1906
The appellant is an honorably discharged soldier of the Union army. He was employed in the dóck department qf the -city of Hew York since 189Ó as a transitman. On the'11th day of March, 1898, he was receiving a salary of $150 per month, which the defendants, constituting the board of docks, on that day reduced to $100 per month. The plaintiff alleges that' this reduction was made with a view to bringing about his resignation, and he brings this action for damages under section 1 of chapter 312 of the Laws of 1884, as amended by chapter 821 of the Laws of 1896, which has been since revised in section 20 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws .of 1902, chap. 270), which, so far as material to this appeal, provides as follows: “And no person holding a position by appointment or employment in the State of Hew York or of the several cities, counties, towns or villages thereof and receiving a salary .or per diem pay from the State or from any of the several cities, counties, towns or villages thereof, who is an honorably discharged soldier, sailor or marine, having, served as such in the Union army or navy during the War of the Rebellion,-and who shall not have served in the Confederate army or navy, shall be removed from such position' or employment except for incompetency or misconduct shown, after a hearing upon due notice, upon the charge made, and with the right to such employe or appointee to a review by writ Of certiorari; a refusal to, allow the preference provided for in this act to any hon
The motion for dismissal was made upon two grounds: (1) That the action was barred by the three years’ Statute of Limitation's prescribed in subdivision 3 of section 383 of the Code of Civil Procedure ; and (2) that the statute purporting to give the cause of action was unconstitutional. The court placed the dismissal upon the former ground; but if either ground was tenable, the judgment must be affirmed.
The question as to whether the action is barred by the Statute of Limitations depends upon whether it is governed by subdivision 3 of section 383, or subdivision 2- of section 382 of the Code of Civil Procedure. The' former prescribes a limitation of three years for “ an action upon a statute for a penalty or forfeiture where the action is given to the person aggrieved, or to that person and the people of the State, except where the statute imposing it prescribes a different limitation; ” and the latter prescribes a limitation of six years for “ an action to recover upon a liability created by statute, except a penalty or forfeiture.” How it is very clear that this is a cause of action “ to recover upon a liability created by statute.” The question, therefore, on this branch of the case narrows to the inquiry whether it is a cause of action for a “ penalty or forfeiture ” within the meaning of those terms as employed in these provisions of the Code. Ueither the word “penalty” nor “forfeiture” is used in the statute giving the cause of action, but that, while entitled to some importance, is not controlling. Ordinarily, the amount of a statutory penalty or forfeiture is fixed arbitrarily and is prescribed as punishment and has no relation to the damages sustained by the party who receives the benefit of the recovery; but this is not always the case and, therefore,, it is not controlling. Here the recovery authorized by the statute is the damages sustained by the aggrieved party for the wrong. The damages must necessarily be limited to compensation to the party whose rights have been violated. But that fact alone is not decisive of the ques
‘For these reasons, therefore, I think the judgment was right and should be affirmed.
O’Brien, P. J., Ingraham, McLaughlin and Houghton, J"J., concurred.
Jndgment affirmed, with costs. Order filed.