156 N.Y.S. 975 | N.Y. Sup. Ct. | 1915
Leland C. Jones, a veteran of the Spanish War, was appointed to the civil service of the
The use of the word “ auditor ” in the communication was a mistake. See mimites, page 16. In a letter to the tax commissioners on July 11,1914, Jones sought to find out about the change in his salary and wrote: “ * * * I would thank you for a copy of the minutes of the meeting or meetings of your board which in any way show the proceedings of your board or which in any way affect the position held by me as mortgage tax examiner.”
The contention of the relator is that the state board of tax commissioners in reducing his salary from $1,-800 to $900 removed him from his position. There are no aiithorities that have been called to my attention that support this extreme claim. Speaking with regard to the reduction of the salary of a school teacher the Appellate. Division of the second department said : “As to the effect of the reduction of the relator, I concur in the opinion expressed by Mr. Justice Marean at Special Term, to the effect that reduction is really a removal from the position occupied, accompanied by appointment to a lower position.” People ex rel. Callahan v. Board of Education, 78 App. Div. 505; affd. 174 N.Y. 169.
It is not contended that in the case at bar there was any change made in the position held by the relator. With regard to other public employees than veterans and volunteer firemen the rule is well established that the power “ to fix a salary carries the power to reduce it.” Matter of Rudd v. Cropsey, 159 App. Div. 275; Sauerbrunn v. Board of Education, 150 id. 407.
If there were nothing in the case beside the mere fact of reduction of salary the respondents would be entitled to judgment for there is no difference in the reduction of the salary of an ordinary employee and a veteran except that the veteran’s may not be reduced with the purpose of bringing about his resignation. The
“ § 21. A refusal to allow the preference provided for in this and the next succeeding section to any hon-, orably discharged soldier, * * * or a reduction of his compensation intended to bring about his resignation shall be deemed a misdemeanor, and such honorably discharged soldier * * * shall have a right of action therefor in any court of competent jurisdiction for damages, and also a remedy by mandamus for righting the wrong. ’ ’
All that can be done in this proceeding is to determine the right of the applicant to his position during the time he was out of it. A mandamus may. issue compelling the state board of tax commissioners to restore his salary for that period to $1,800 or reinstate him as he may be advised. Hilton v. Cram, 112 App. Div. 35.
Writ allowed. Fifty dollars costs besides disbursements.
Ordered accordingly.