Appeal from Trial Term, New York County.
Action by Robert S. Sutliffe against the City of New York to recover salary. From a judgment for plaintiff entered on a directed verdict, and from an order denying a new trial ( 61 Misc. 514, 115 N.Y.Supp. 186), defendant appeals. Reversed.
[117 N.Y.S. 814] Francis K. Pendleton, Corp. Counsel (Theodore Connoly, of counsel and Royal E. T. Briggs, on the brief), for appellant.
Spencer, Ordway & Weirum (Samuel H. Ordway, of counsel), for respondent.
Argued before INGRAHAM, McLAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.
On April 11, 1906, the plaintiff procured an alternative writ of mandamus to be issued out of the Supreme Court which recited that whereas the plaintiff alleged that on March 1, 1901, after duly and successfully taking the required civil service examination therefor he was duly promoted to the position of sixth-grade clerk in the department of parks, which was a position subject to competitive examination, and that his salary was duly fixed at the rate of $2,000 per annum, and that the duties which he performed were those of a regular clerk, and that he was discharged on January 22, 1904, contrary to the provisions of section 1543 of the Greater New York charter (Laws 1901, p. 636, c. 466), in that no opportunity was given to him to make an explanation. The said alternative writ commanded the commissioners of parks to forthwith reinstate relator to the position of sixth-grade clerk in the department of parks in the city of New York formerly held by him at a salary of $2,000 per annum, or show cause why the command in the writ ought not to be obeyed. A return having been filed to said writ, the issues came on for trial, and the relator obtained a verdict, whereupon and on January 8, 1907, a peremptory writ was issued commanding the commissioners to forthwith reinstate and re-employ said relator in the position of sixth-grade clerk in the department of parks, formerly held by him. An appeal was taken to this court, which affirmed the final order granting the peremptory writ of mandamus by order entered June 21, 1907. 120 A.D. 879,105 N.Y.Supp. 1138.On July 29, 1907, he was reinstated, and within two or three days thereafter he resigned.
The plaintiff testified on this trial that after his discharge he entered the employ of the New York Telephone Company, where he still is, and that during the period covered by this suit he received from the New York Telephone Company more than the amount of his claim here.
This action is to recover $7,049.23, being the salary at the rate of $2,000 a year from January 22, 1904, to the date of his reinstatement. The trial court directed a verdict for the full amount, with interest, and, from the judgment entered thereon and the order denying a new trial, the city appeals.
The judgment in the mandamus proceeding conclusively establishes that the plaintiff was a regular clerk in the sixth grade within the [117 N.Y.S. 815] classified civil service in the competitive class at a salary of $2,000 per annum, and that he was improperly removed for a violation of the provisions of the section 1543 of the revised charter (chapter 466, p. 636, Laws 1901), which provides:
" But no regular clerk or head of a bureau or person holding a position in the classified municipal civil service, subject to competitive examination, shall be removed until he has been allowed an opportunity of making an explanation."
The question presented upon this appeal is whether the city is entitled to offset, in an action to recover the salary attached to the position during the period of illegal removal, the amounts earned by the plaintiff in other occupations.
The respondent claims that it has not, that the salary is an incident of the position, and that being entitled to the position, he was entitled to the salary whether services were rendered or not, and without offset or deduction, and that to this position should be applied the rule of law applicable to public officers where it is conceded that the salary is an incident of the office. The appellant claims that subordinate positions in the public service do not come under that rule; that the action is of the nature of an action for damages for breach of a contract of employment, where the damages are measured by the agreed compensation, but are subject to offset for moneys earned elsewhere. This is the rule so far as private employment is concerned, and the appellant claims that such rule should be here applied.
The respondent advances a somewhat fanciful argument, that, irrespective of other considerations, inasmuch as the law of the state governing the civil service contemplates stability of employment, when public officers, in disregard of statutory provisions, unlawfully discharge employés, the city should be compelled to pay the full amount of the unearned salaries, so that the officers having the power of appointment and removal may be forced to obey the law. If the action was directed against the officer so offending, that argument might be worthy of consideration, but, as it is, the effect would be to fine the city for the improper act of one of its officers in order to give to a removed employé, who has suffered no pecuniary damage by reason of his removal, a gratuity by way of smart money. That argument does not impress us.
I think, from an examination of the authorities in this state, that the following propositions may be held to have been established: First, in the case of a public officer his salary fixed by law is an incident of his office, and he is entitled to the same whether he performs the services or not. Fitzsimmons v. City of Brooklyn, 102 N.Y. 536, 7 N.E. 787,55 Am. Rep. 835; Gregory v. Mayor, 113 N.Y. 416, 21 N.E. 119,3 L.R.A. 854; Emmitt v. Mayor, 128 N.Y. 117, 28 N.E. 19.If he has been illegally removed from office, he must first, by appropriate proceedings in the nature of quo warranto, be reinstated therein before an action will lie for such salary. If it shall appear that during the period of his separation from the service his salary has been paid to a de facto officer, he cannot recover the amount from the city, but has a right of action over against said officer for money had and received. [117 N.Y.S. 816]Dolan v. Mayor, 68 N.Y. 274, 23 Am. Rep. 168; McVeany v. Mayor, 80 N.Y. 190,36 Am. Rep. 600; Nichols v. McLean, 101 N.Y. 526, 5 N.E. 347,54 Am. Rep. 730; Hagan v. City of Brooklyn, 126 N.Y. 643, 27 N.E. 265.Second, that clerks and subordinates who are protected in their positions by (a) the provisions of the charter which forbid their removal without notice and an opportunity to be heard, (b) by the veteran laws, and (c) by the civil service laws covering positions in the classified service, subject to competitive examination, while not public officers, yet are a class of public servants whose tenure is made stable, their term of employment indefinite, and subject only to be put an end to by certain prescribed methods and procedure, and that such clerks and subordinates have the right of proceeding by mandamus to procure reinstatement when illegally removed, and that a reinstatement of such clerks and subordinates is a condition precedent to an action for salary for compensation for the period ...