105 N.Y.S. 950 | N.Y. App. Div. | 1907
Lead Opinion
The plaintiff was a clerk in.the department, of finance in the city of New York at a yearly salary of $1,800. On April 30, 1902, the board of estimate and apportionment of the city by resolution of a general scheme fixed the salary at $1,500. The plaintiff remained ' as a clerk in the department, discharged the same duties and accepted the salary as thus reduced, receipting for it under protest. He has recovered a judgment against the city for the difference between these salaries. The action of the board of estimate and apportionment was pursuant to the charter (Laws of 1901, chap. 466, § 10, as amd. by Laws of 1902, chap. 436), and under a provision described by the first department of this court (per Clarke, J., in Matter of Hamburger v. Board of Estimate, 109 App. Div. 427; appeal dismissed, 184 N. Y. 577), “ as broad a gran( of power as human language could frame.” I have no doubt that this power to fix salaries-and hence to reduce them was duly conferred upon that board.. The legality of its action is challenged on the sole ground that the effect thereof was to remove the plaintiff summarily in violation of his rights as a veteran of the late .Civil war and of a volunteer fire, department. The assertion, of removal rests upon the prbposition that this reduction of the salary ipso facto transferred the plaintiff from the fifth grade of clerks to the fourth grade of clerks in the classification of such employees made by. the municipal civil service commission. If there were any removal at all, it was technical to the last degree, as the position was continued and the plaintiff remained in it to the discharge of the same duties. It is not asserted that the municipal civil service commission was clothed with any direct power in the premises. But. the proposition necessarily is that as the action of the board of estimate and apportionment incidentally changes the class'df the clerk as arranged by the 'civil service commission, such action is illegal in that it worked an illegal remo val. If the proposition be sound, then the classification of the municipal civil service commission is a check upon the broad powers conferred in express terms upon the board of estimate and apportionment to regulate and incidentally to reduce this compensation. If the question were entirely open, 1 should riot hesitate to conclude that such a classification could not thus hinder the board of estimate and apportionment, for thereby the civil service com
The plaintiff’s theory is that he had a right to the position at a salary of $1,800 a year, and that his relation to that position is stated in the language of. the prevailing opinion in O'Hara v. City of New York (46 App. Div. 518), where Rümsey, J., says : “And, so long as his right to the position existed, we think the rule should be applied which has come to be recognized in cases of this kind, that the right to the salary is an incident of the position from which one is irremovable, and as long as the position exists the right to the ■ salary remains.” That case was affirmed on the -opinion below. (167 N. Y. 567. See, too, Martin v. City of New York, 82 App. Div. 36; affd., 176 N. Y. 371.) In other words, the pláintiff insists
The removal must be regarded as valid until set aside. (People ex rel. Cook v. Board of Police, 39 N. Y. 506, 519; Van Valkenburgh v. Mayor, 49 App. Div. 208.) Of course, if plaintiff was removed, he was out of the position. As the action is to recover a salary as incidental to a position, I think that the plaintiff was bound to show that he was entitled to the position. He failed to show that the removal was ever set aside or that he was reinstated. He could not establish his right to the position in the suit to recover . this salary, but the rjight should have been established in some direct proceeding. Throop on Public Officers (§ 510) says: “ An .officer of a city wrongfully removed or discharged before the end of his term, cannot maintain an action for his salary against the city for the time subsequent to his removal or discharge, but he must first proceed by mandamus, certiorari or otherwise, to procure himself to be reinstated,” citing authorities. In. McManus v. City of Brooklyn (5 N. Y. Supp. 424) the court, per Clement, Ch. J., say: “ The rule in this State is that an officer who is .illegally kept out' of his office cannot recover the salary of the State or municipality until there has been a judicial determination establishing his right to the office, and then he is entitled to recover the salary during the time he was prevented from performing the service, unless the.same has been paid to an officer defacto, performing the duties.” McManus' Case (supra) was affirmed by the affirmance of Hagan v. City of Brooklyn, which was decided on the authority of the former case (5 N. Y. Supp. 425, 426) in 126 New York, 643, and in its memorandum of opinion the court say: “We think that, under the authorities, this action cannot be supported. The rule deducible from an examination of the various cases on the subject ip this State is to the effect that a public officer unlawfully removed from' office to which another person is appointed, and who acquiesces in such removal and has not, by certiorari or otherwise, obtained a reversal of the order removing him, or a reinstatement in the vacated term by the board having authority to make it, cannot recover from the corporation the compensation incident to the. office accruing during the period in which he performed no service. (Nichols v
Hadley v. Mayor.— [Rep.
Hirsohberg, P. J., Hooker and Miller, JJ., concurred.
Amended by Laws of 1900, chap. 675,-^- [Rep.
Concurrence Opinion
(concurring)
It seems to me that we should not reason out that this case is against the plaintiff even on the false theory on which it was tried.On the contrary, that theory being false, we should so declare, and thus dispose of the case.by pursuing a straight path, instead of following the devious one into which the plaintiff led the court below; We should stay out of it entirely.
Section 10 of the charter of the city of New York (as amended by chap. 436 of the Laws of 1902) empowers the board of estimate and apportionment to fix the salaries in any department or burean on the recommendation of the head thereof. Acting thereunder the said- board passed a resolution readjusting and fixing the scale of salaries in the department of finance. The plaintiff’s salary as clerk was thereby reduced from $1,800 to $1,500 a year.
The trial judge made a conclusion of law that such reduction of salary “ was in legal effect ” a removal of the plaintiff from his place; and from this premise followed - the other conclusion that the removal was "illegal because the .plaintiff was not given the trial he was entitled to before he could be removed, he being a veteran fireman (city charter § 127), and -also because he was not given an opportunity to explain before being removed (id. § 1543).
But the plaintiff was not removed as matter of fact; He was
To reverse the plaintiff’s, judgment on the ground that he brought the action prematurely, i. e., before first getting himself reinstated in . his office by a writ , of mandamus, when in fact, he 'has never been out of his office, and therefore cannot be, allowed such a writ, would be only misleading him. .
Judgment reversed and new trial granted, costs- to abide the event.