O'DONNELL v. CITY OF NEW YORK

O’DONNELL v. CITY OF NEW YORK. (128 App. Div. 186.) (Supreme Court, Appellate Division, Second Department. October 22, 1908.) 1. Municipal Corporations — Employes — Municipal Departments — Pay While Wrongfully Removed. Where plaintiff, a veteran foreman in the city bureau of highways, was discharged without notice or hearing on charges, and reinstated 10 months thereafter, he cannot recover his salary for the time he did not work, he being only an employe and not holding a statutory office, and that his removal was unlawful under the veteran employes’ act (Laws 1887, p.' 579, c. 464), so that he could have compelled his restoration, was immaterial. [Ed. Note.—For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 363.] 2. Same—Statutory Offices. The salary of a statutory office in the city government is attached to the office, and must be paid by the city to him to whom the office belongs, whether he actually performs the duties thereof or not, unless paid to a de facto incumbent. [Ed. Note.—For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 357-361.] Appeal from Municipal Court of New York. Action by William O’Donnell against the city of New York. From a judgment for plaintiff, defendant appeals. Reversed. Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH, JJ. Theodore Connoly (Thomas F. Noonan, on the brief), for appellant. Gregg, Frank & De Witt, for respondent. [MAJORITY — GAYNOR, J.] GAYNOR, J. . The plaintiff was employed as a stonecutter in the bureau of highways, borough of Queens, and then made a foreman as such at the same pay. He was discharged without a notice and hearing on charges, although- he was a veteran foreman. Ten months afterwards he was restored to his position. This action is to recover his salary for the time he was out of the position and did no work.for the city. It cannot be maintained. The case is not one of a statutory office, the salary of which is attached to the office and belongs to and must be paid by the city to him to whom the office belongs (unless paid to a de facto incumbent). The plaintiff was only an employe, and his right to compensation ceased upon his removal in fact from his place. The removal was an unlawful official act, but while the official who did that act may have incurred a liability for damages to the plaintiff, that does not give any support to the proposition that the city remained liable for his daily compensation after his removal. The fact that he was afterwards restored to his place has no bearing on the case. If his pay did not continue by law while he was out for the reason that he was unlawfully removed, his subsequent restoration or reappointment did not, by relation back, continue it. The case of Higgins v. Mayor, 131 N. Y. 128, 30 'N. E. 44, is the same in all essentials as" the present case, and controls it. It is there said: “The effect of this legislation” (viz., the veteran acts [Laws 1887, p. 579, c. 464]) “was to impose a personal duty upon the public officials to carry out the provisions of the law, and to subject them to penal consequences, if those provisions were disregarded or violatedand that there is no intention “that the municipality is to be made liable for any violation of its provisions.” This decision was followed in Sullivan v. Mayor, 135 N. Y. 647, 32 N. E. 646. The case of Steinson v. Board of Education, 165 N. Y. 431, 59 N. E. 300, is not in point. It was not against the city, but against the board of education, and for an act by the board. It was by a discharged teacher for damages for breach of contract of employment by the board by her discharge. Neither is the case of Graham v. City of New York, 167 N. Y. 85, 60 N. E. 331, applicable. There the plaintiff was never removed at all. He attended daily, but was given no work to do, and the city defended on the ground that he did no work. Nor are stray expressions in mandamus cases applicable. That a discharged appointee may have the right to be restored to his place, for not having been removed with the formalities required by the veteran acts, does not establish the proposition that the city is liable for the compensation while the appointee is actually out. The judgment should be reversed. Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur.