White v. Harrell

Hill, P. J. The appellants are the city manager, comptroller and treasurer, respectively, of the city of Binghamton, and have appealed from a final mandamus order and judgment which directs that respondent be reinstated and appointed to the position of assistant engineer, sewer construction, and that he be paid the salary of such position from January 16, 1932, to the date of the reinstatement. Respondent, a veteran of the World war, was first employed by the city on May 14, 1917. In November of that year he Was appointed from a civil service list of the city to the position of chain-man, bureau of engineering, and in 1920 he became instrument man, bureau of engineering, and later in the same year was transferred to the bureau of water and made clerk to the superintendent. Each of these «later appointments was made after a civil service examination. On January 7, 1932, he was discharged, the notice being in writing, signed by the city manager, and concluding with the statement: “ The City of Binghamton will not require your services after January 15th.” The Special Term, by an order of peremptory mandamus dated February 19, 1932, directed the appellants forthwith to reinstate and transfer the respondent to the position of assistant engineer, sewer construction. Upon appeal, this order was reversed (Matter of White v. Harrell, 236 App. Div. 206) on the ground that an issue of fact was raised by the answering affidavits that could be determined only under an alternative order of mandamus. This was granted, the issues of fact have been tried before the court and a jury, the latter deciding by its verdict that respondent was a veteran of the World war, that on January 16, 1932, the day following his wrongful discharge, a vacancy which he was qualified to fill existed in the position of assistant engineer, sewer construction. These findings were sustained by the evidence. A general verdict was entered upon the special verdict of the jury. Appellants question the direction requiring payment of salary to respondent to the time of his reinstatement contained in the final order, and argue that, if any salary is to be paid, it should terminate on March 21, 1932, because the common council of the city on that day adopted an ordinance “ That the position of Assistant Engineer, Sewer Construction in the Bureau of Engineering, Department of Public Works, be and the same hereby is abolished.” This ordinance is not mentioned either in the petition for the mandamus order or in the answering affidavits. It was first offered upon the trial by the attorney for the respondent, “ solely for the purpose of [606] showing that the position of Assistant Engineer, Sewer Construction, existed upon the 16th of January, 1932.” Later it was offered generally by the attorney for the appellants. Respondent’s objection to its receipt for any purpose, “ except as it bears upon the questions of fact at issue in this case,” was overruled. It was conceded also upon the trial that the peremptory order of mandamus requiring respondent’s reinstatement had been served upon the appellants before the adoption of the ordinance. The differing doctrines as to the right of an official wrongfully removed to recover back salary as announced in some of the earlier cases (Dolan v. Mayor, 68 N. Y. 274; McVeany v. Mayor, 80 id. 185; Terhune v. Mayor, 88 id. 247; Higgins v. Mayor, 131 id. 128; Jones v. City of Buffalo, 178 id. 45) have been reconciled by statute (Civ. Serv. Law, § 23). “ 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 wrongfully removed from a position in the civil service does not sustain an injury. He is deprived of a right. * * * 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 [now § 1338, Civ. Prac. Act]; People ex rel. Goring v. Prest, etc., of Wappingers Falls, 151 N. Y. 386, 389.) ” (McGraw v. Gresser, 226 N. Y. 57.) Damages may be assessed and their payment directed in a final order of mandamus (Civ. Prac. Act, § 1338), but in cases where a veteran has been unlawfully removed from a civil service position, restoration to the position is a condition precedent to the right to receive the salary and to have an assessment thereof as damages in the final order. (Civ. Serv. Law, § 23; Prowler v. City of New York, 216 App. Div. 824; Sutliffe v. City of New York, 132 id. 831; People ex rel. Collins v. McAneny, 144 N. Y. Supp. 121.) The rights of the respondent which had accrued were not affected by the subsequent legislative acts of the common council. (Gen. Constr. Law, § 93.) Respondent had been deprived of a right through appellants’ wrongful act. (McGraw v. Gresser, supra.) “ The court cannot under guise of an amendment or repeal of a statute, cut off any substantial right of a party to have his case decided on the merits according to the law of the land.” (Lazarus v. Metropolitan Elevated R. Co., 145 N. Y. 581, 585.) The equitable rule requiring relief according to the exigencies of the case at the close of the trial does not apply. Notice of the peremptory order of mandamus was served upon appellants before March 7, 1932. This directed that respondent [607] be reinstated and transferred to the position of assistant engineer. True that order was reversed, but only because the pleadings raised an issue as to the existence of the position. A jury has determined that it did exist. The adoption of the ordinance abolishing it is tantamount to an admission that the position did exist and was vacant at the time of respondent’s discharge. When the officials of a city have defied the decision of the court and refused to reinstate an officer wrongfully removed, there is no hardship in requiring payment of salary improperly withheld. (Jones v. City of Buffalo, 178 N. Y. 45, 49.) The position is now abolished, except for the purpose of permitting respondent’s reinstatement. That accomplished, and his back salary paid, his service therein will terminate at once. He will have then the rights given him by section 22 of the Civil Service Law, as to a vacancy in any other position. The order should be affirmed, with costs. Rhodes and Heffernan, JJ., concur; McNamee, J., dissents, with an opinion; Bliss, J., concurs in that portion of the majority opinion and decision which provides for the affirmance of that portion of the mandamus order directing the petitioner’s appointment to the position of assistant engineer, sewer construction; and dissents from that portion of the majority opinion and decision which holds that petitioner was entitled to the salary of the position of assistant engineer, sewer construction, after the abolishment of that office on March 21, 1932. The petitioner had no vested right which prevented the abolishment of that position. (Sutliffe v. City of New York, 132 App. Div. 831.) Section 23 of the Civil Service Law gave him the right only to “ the same compensation therefor from the date of such unlawful removal to the date of his said restoration to said position or employment which he would have been entitled by law to have received in such position or employment but for such unlawful removal.” He would not have been entitled to receive in such position any salary beyond the date of its abolishment.