McGraw v. . Gresser

Pound, J. The question is whether a former volunteer fireman, wrongfully discharged from a position in the civil service, may, after reinstatement by mandamus, maintain an action to recover damages against the officer who removed him, his position having meanwhile been filled by the appointment of another person. Exempt volunteer firemen were first protected from removal from positions in the civil service of the various cities and counties “ except for cause shown after a hearing had ” by Laws of 1892, chapter 377. This statute provided no remedy, but it was held in People ex rel. Coveney v. Kearny (44 App. Div. 449; affd., 161 N. Y. 648) that a veteran fireman-wrongfully discharged from a subordinate position was entitled to a common-law writ of mandamus to compel his reinstatement -when no question arose between the relator and any actual incumbent of the position. The statutory provision for a writ of mandamus for the benefit of firemen appears in Laws of 1899, chapter 370, section 21, now section 22, Civil Service Law. The effect of this amendment was merely to extend the remedy by mandamus to cases where the position had been filled by the appointment of another. (People ex rel. Mesick v. Scannell, 63 App. Div. 243, 246, 247.) But mandamus was essentially a remedy for reinstatement and reinstatement is not a complete remedy. The act of defendant in removing plaintiff without a hearing was ministerial. (Nuttall v. Simis, 31 App. Div. 503.) Defendant is, therefore, also hable in damages to plaintiff by reason of his misfeasance. (Hover v. Barkhoof, 44 N. Y. 113; Bryant v. Town of Randolph, 133 N. Y. 70; Beardslee v. Dolge, 143 N. Y. 160.) A public office or position is not property in the sense in which that term is generally used, but it is idle to say that one who is wrong *60 fully removed from a position in the civil service does not sustain an injury. He is deprived of a right. (Nichols v. MacLean, 101 N. Y. 526, 533.) In the “ Great Case ” of Ashby v. White (2 Ld. Raym. 938, 950; 3 Ld. Raym. 320; 1 Smith L. C. [11th ed.] 240) the House of Lords, approving the dissenting opinion of the famous Sir John Holt, Ch. J., below, held that an action lies in behalf of any person having a right to vote against election officers who refused to receive his vote, because he has been deprived of a right and where there is a right there is a remedy. (Willy v. Mulledy, 78 N. Y. 310, 314.) The loss is the amount of salary of which plaintiff has been deprived by defendant’s, wrongful act. If plaintiff had so elected, he might have, with proper parties and allegations, had damages awarded to him in the mandamus proceeding wherein he was reinstated (Code Civ. Pro. § 2088; People ex rel. Goring v. Prest., etc., of Wappingers Falls, 151 N. Y. 386, 389), but the alternative was not between such election and a waiver of his rights. Where a statute gives a right it does not follow that other consistent rights are taken away. (Central Trust Co. v. N. Y. City & No. R. R. Co. 110 N. Y. 250, 255.) Even if we adopt, as did the learned trial justice, the dictum of Laughlin, J., in People ex rel. Walker v. Ahearn (139 App. Div. 88, 94; affd., 202 N. Y. 551) that public policy protects officials who make unauthorized removals " in the absence of bad faith or improper motive,” plaintiff is entitled to recover. But the law may not be violated with impunity, even by public officials with good motives. I think that the judgment is right and should be affirmed, with costs. Hogan, Cardozo and Andrews, JJ., concur; His cock, Ch. J., Collin and Cuddeback, JJ., dissent. Judgment affirmed.