123 N.Y.S. 845 | N.Y. App. Div. | 1910
Lead Opinion
This is an application for a mandamus to compel the reinstatement of' the relator to the position of superintendent or head of the bureau of public buildings and offices in the borough of Manhattan, city of New York, from which he was removed by appellant Ahearn, as president of the borough of Manhattan, on the 16th day of May, 1907. The application was originally denied at Special Term, but on appeal to this court the order was reversed and an alternative writ was granted. (129 App. Div. 912.) The theory upon which the proceeding was instituted was that ther position held by the relator was the head of á bureau and that he could not be lawfully removed therefrom without notice and an opportunity to explain the charges made against him, pursuant to the provisions of section 1643 of the Greater New York charter. (Laws of 1901, chap. 466.) -He was removed without notice or opportunity to make an explanation of charges preferred against him. The theory upon which the president of the borough acted was that the position held by the relator was'not the head-of a bureau within the contemplation of the provisions of said section, of the charter, and that no bureau of public buildings and offices in the borough of Manhattan had been lawfully created. On the former appeal to this court that question was fully argued and the effect of the decision of this court in granting the alternative writ- necessarily was that the borough president was authorized to create such a bureau, and that mandamus was the proper remedy, for otherwise nothing to avail the relator could have been.'accomplished by -issuing the alternative writ. A question of fact was presented by the petition and opposing affidavits as to whether or not such a bureau had been-created by the borough president, and this necessitated the granting of an alternative writ of mandamus. . On the trial before the court, and jury.on the alternative writ and the return thereto, the material facts-with respect to the creation of the bureau were" matters of record and thereupon a question of law was presented ás to whether the acts of the borough president were sufficient in law to constitute the due creation of the bureau. The court ruled that they were and accordingly directed a verdict in -favor of .the relator. On proof of a computation of the amount of the relator’s salary during the period from the time of 1ns removal until the date of the trial,
Regarding as we do the decision on the former appeal as res adgudieata, of the question with respect to the. power of the president of the borough of Manhattan to create the bureau, we are of opinion that the uncontroverted evidence sufficiently shows that he exercised the authority in a manner to make his acts effective for that purpose.
Said section 2088 of the Code of Civil Procedure, under which relator’s damages have been assessed, provides as follows: “ Where a return has been made to an alternative writ of mandamus, issued upon the relation of a private person, the court, upon making a final order for a peremptory mandamus, must also, if the relator so elects, award to the relator, against the’ defendant who made the return, the same damages, if any, which the relator might recover, in an action against that defendant, for a false return. The relator ■ may require his damages to be assessed upon the trial of an issue of fact, if the verdict, report, or decision is in his favor. Where lie is entitled to a final order, for any other cause, he may require them to be assessed as in an action. Such an assessment of damages bars -an action for a false return.” Throop in his note to this section states in substance that it was taken from sections 57 and 58 of title 2 of chapter 9 of part 3 of the Revised Statutes, which, as he puts it, were “ consolidated, without material alteration, except possibly by the addition of the clauses in the first sentence allowing the relator to elect to take judgment for damages and of the last three sen
“ § 57. In case a verdict shall be found for the person suing such writ, or if judgment be given for him upon demurrer or by default, he shall recover damages and costs, in 1 ike manner as he might have done in such action on the case as aforesaid, and a peremptory mandamus shall be- granted to him without delay.
“ § 58. A recovery of damages by virtue of this Article, against any party who shall have made a return to a writ of mandamus, shall be a bar to any other- action against the same party, for the making of such return.”
The action on the case to which reference is made in said section 57 relates to the provisions of section 55 of the same, title of the Revised Statutes (2 R. S. 586), which after providing that the person prosecuting the writ may demur or plead to all or any of the material facts contained 'in the return thereto, and that the person making the return “ shall reply, take issue or demur,” then provides “and the like proceedings shall be had therein .for the determination thereof, as might have been had, if the person prosecuting such writ had brought his action on the case for a false return.”
Said sections 57 and 58.were taken from sections 2 and 3, volume 1, Revised Laws, page 107, which was a re-enactment without change of the provisions of chapter 11 of the Laws of 1788. The original statute, as appears by the revisers’ notes to the Revised Laws and by the decision of the Court of Appeals in People v. Supervisors of Richmond (28 N. Y. 112), was taken from the statute of 9th Anne (Chap. 20), and it is, therefore, to he construed in the light of the rules of pleading at common law. .It authqrizedthe party applying for the writ “ to plead to or traverse all or any the material facts_ contained ” in the return, and it provided that the party making the return “shall reply, take issue or demur” to' the pleading or traverse of the moving party. In the revisión of the statute made by the original enactment of the Revised
There is here no adjudication that the return was false. At most tlie president of the borough either misunderstood the true, construction of statutory provisions or the legal effect of the official acts of his jiredecessor in office with respect to the creation of the bureau, and for aught that appears he may have acted on the advice of the corporation counsel, who was constituted by law his legal adviser in the performance of his official duties. (See Greater New York Charter [Laws of 1901, chap. 466], § 255.) There was no charge or issue concerning his motive or his purpose in removing the
We are of opinion also that the provision by which the relator is reinstated with the right to his salary from: the time of his removal was unwarranted. It appears that the office was filled by the appointment of Voorhis, who has been brought into the proceeding. It is probable, although it does not appear, that the city has paid some or all of this salary to him. If so it is not liable to the relator, for it would only become liable to -him from the time his rights were adjudicated, and his only recourse, would be an action over against the de facto officer who has received it. (Higgins v. Mayor, etc., 131 N. Y. 128; Dolan v. Mayor, etc., 68 id. 274; Mc Veany v. Mayor, etc., 80 id. 185; Terhune v. Mayor, etc., 88 id. 247; Demarest v. Mayor, etc., 147 id. 203 ; Martin v. City of New York, 176 id. 371. See, also, Jones v. City of Buffalo, 178 N. Y. 45.) In so far as the city has not paid the' salary to another, the relator would undoubtedly be entitled to recover it in" an action (Dolan v. Mayor, etc., supra), and the effect of this statutory provision, notwithstanding the fact that there is no false,.return, would be to authorize him to recover it here were the city a party to the proceeding, but the city is not, strictly speaking, a party to the proceeding and did not make the return, and the authority to award damages-is confined to awarding them against the party who made the return.
The judgment and final order are, therefore, modified.by limiting the provisions thereof awarding relief to the reinstatement of the relator, with costs of the proceeding against the respondent as president of the borough of Manhattan, city of Hew York, ’"that being the capacity in. winch the proceeding was instituted • against him,. and as modified affirmed, without costs.
Clabke, J., concurred.
Concurrence Opinion
I concur with Hr. Justice Lau&hlin. Under the provisions of section 2088 of the Code of Civil Procedure, where a writ of mandamus is finally ordered, the relator is entitled to recover his damages against the defendant who has interposed a return, and these damages were to be “ the same damages, if any, which the relator might recover, in an action against that defendant,- for a false return.” How, it seems perfectly clear that any damages that the relator has sustained before the return was interposed could not be the damages caused by a false return, assuming that a “false return” is synonymous with an insufficient return. In this case, if no return had been interposed, the relator would have been entitled to a writ to reinstate him in the position from which he had been removed. The only damage, therefore, which could be caused to the relator by reason of a false or insufficient return was his salary from the time that he would have been entitled to receive it after his reinstatement and the time of the final order reinstating him.
I am inclined to think that the relator was entitled to have his damages assessed and a recovery therefor by the final order (People ex rel. Goring v. Wappingers Falls, 151 N. Y. 386), but as such damages were there caused by the interposition of the return, the relator was confined to such an amount as would compensate him for the loss that he had sustained by being kept out of his office from the time that he would have been reinstated if no return had been interposed to the date of the final order. The relator did not claim these damages, and there seems to be nothing in the record from which the amount could be determined.
I, therefore, concur with Hr. Justice Laughlin in reversing the order as against the defendant personally.
Hiller, J., concurred.
I concur in the modification of the final order, and should be willing to go further and vote for a reversal of both order and judgment, except that we are concluded by our former decision allowing an alternative writ of mandamus to issue. (129 App. Div. 912.) By that decision, although no opinion was written, we necessarily held that upon the facts alleged by the relator, and afterwards proven
Judgment and order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.