Anna Burke, as Administratrix, etc., of Benjamin F. Burke, Deceased, Respondent, v. George Holtzmann, Appellant

Anna Burke, as Administratrix, etc., of Benjamin F. Burke, Deceased, Respondent, v. George Holtzmann, Appellant. Third Department, January 9, 1907. Civil service —- survival of action for damages under section SO — failure to seek other employment excused. An action against a commissioner of public works, of a municipality brought ' - under section 20 of the Civil- Service Law to. recover damages ‘ for the- refusal of the defendant to allow the preference of a veteran guaranteed by the Constitution and the ¡statute'is an action for injury to property rights,- survives the death of the plaintiff, and may be continued by his.lepresentative. - • . When in such action • it appears that the defendant some time in .January promised' to give the decedent work upon the city streets after the ice and - snow bad been,removed, the decedent was excused from seeking other similar employment, and his failure to' do .so does not1 restrict the verdict to nominal damages, or prevent a recovery. ■ Appeal by the defendant, George Holtzmann, from a judgment of the Supreme Court in .favor of the plaintiff; entered in the office of the clerk of the county of Schenectady, on the 14th day of June, 1906, upon the verdict of a jury, and also from'an order entered in said clerk’s' office on the 14th -day of June, 4906, denying th¿ defendant’s motion for a new trial made .upon the minutes. The defendant was, in 1-904, the commissioner of public works in- the city of .Schenectady. As such commissioner it was a part of .his duty to employ laborers upon the- street. Benjamin Burke, the plaintiff’s intestate, was a resident of the city of Schenectady at that time, and in January,-1904, made application to the defendant for employment as a laborer upon the streets. Before making such application he had furnished the papers required by the municipal civil service commission and liad been placed upon their list as eligible to the appointment and had been designated thereon as a veteran. The defendant refused and néglected -to give the said ' Burke employment until the eighth day- of August in that year. This action was.bnrogM under section 20 of the Civil Service Law (Laws of 1899, chap. 370, as amd. By Laws of 1902, chap. 270.) to recover damages for his refusal to give to the relator the preference guaranteed to him by the Constitution and.the statute. Upon the first trial the complaint was dismissed. Upon appeal that judgment was reversed and a new trial was ordered, the opinion of this court appearing in 110 Appellate Division, 564. Upon the second trial the case was submitted to the jury who found in favor of the plaintiff for $152.25. Upon this verdict judgment was -entered and from this judgment and from the order of the court denying the defendant’s motion for a new trial defendant has here appealed. Daniel Haylon, Jr., for the appellant. Marvin II. Strong and Alvah Hairlee, for the respondent. [MAJORITY — Smith, J.:] Smith, J.: The right of Benjamin F. Burke to recover as against the defendant has been determined by us in the appeal from the judgment of dismissal first rendered. We have examined the brief of the learned counsel for the appellant wherein he reargues the questions there decided and we see no reason for changing the decision then made. Two questions are raised upon this appeal, however, which were not raised upon the former appeal and are 'not discussed in the opinion then written. Since the first trial and prior to the second trial Benjamin F. Burke died. By an order of the court his administratrix was substituted in his place. The defendant claims upon this appeal that the cause of action did not survive and that this plaintiff has no cause of action. The action, however, was not one for personal injury. It was for an injury to his property interests. If this were an action for wages under a broken contract of service there would be no question that the cause of action would survive, and yet this is the nature of the action' given by the statute and because given by the statute its nature is not altered nor is the claim made the less assignable, which is the test of its survivability. We think the right of survival is determined by decisions in analogous cases. (Matter of Meekin v. Brooklyn Heights R. R. Co., 164 N. Y. 145 ; Morenus v. Crawford, 51 Hun, 89; Oregin v. Brooklyn Crosstown R. R. Co., 75 N. Y. 192.) Again it is objected that it appears by the confession of Burke himself that he did not seek; other employment, which fact would prevent, his recovery, or at least authorize a nominal verdict only under the case of Ruland v. Waukesha Water Co. (52 App. Div. 230). A sufficient answer to this proposition in this cáse, however, would' seem to bé' that the plaintiffs intestate, for a part of the time at least, was excused from seeking other similar employment by the promise of defendant’s representative to give lii-m employment upon the- streets after the ice and snow had been gotten out. It may be that after he was finally.refused employment he could not recover if-he wholly neglected to seek similar employment ¿Isewhere. But this proposition was not presented, to the trial court, and- the jury was not asked to be • instructed as to the application of this rule after the. final declaration that the plaintiffs intestate would not be employed because of the failure to get the recommendation of the alderman of his ward. " We see no other grounds for 'reversal of the judgment and conclude that the judgment and order should be affirmed, with costs. . ' ' Judgment and order unanimously affirmed, with costs. Parker, P, J., not sitting.