
    The People of the State of New York ex rel. Joseph Curren, Jr., Respondent, v. Henry R. Cook, as Auditor of the Board of Education of the City of New York, and Others, Appellants.
    Second Department,
    March 8, 1907.
    Municipal corporations — when clerk of board of education of city of Hew York not entitled to salary during suspension.
    As section 1067 of the charter of Greater Hew York provides that employees of the board of education may be removed for cause at any time by a three-fourths vote of the board, and may be'suspended pending the trial of charges, a clerk - in the bureau of supplies of said board who has been properly dismissed from .service is not entitled to recover his salary for the period of his suspension pending the trial. •'
    It is the intent of said statute that the dismissal relate back to the time of suspension..
    Appeal by the defendants, Henry R. Cook, as auditor, etch, -and others, from an order of the Supreme Court, made at the Rings County Special Term and entered in the office of the clerk of the county of Richmond on the 16th day of January, .1907, granting .the relator’s motion for a peremptory writ of mandamus.
    
      Stephen O'Brien [Theodore Bonnoly and William B. Ellison with him on the brief], for the appellants.
    
      John J; Kenney, for the respondent.
   Woodward, J.:

The relator is a resident of Richmond county and was a clerk in the bureau of school supplies in the board of education of the city of New York and was entitled to a salary of $1,-200; per year. He was concededly within the provisions of section 1067 of 'the Greater New York charter (Laws of 1901, chap. 466),,.which provides1 “The city superintendent of schools', any'associate city superintendent, any district superintendent, the -supervisor -of lectures, any -member of the board of examiners, the secretary of the board of education,. the superintendent- of school buildings, the superintendent of school supplies, the auditor or. auditors, and any other officers, clerks or. subordinates of the board',, may, -any or either of them, he removed for cause at any time by a vote of three-fourths of all the members of the board of education, and may be suspended by the board of education pending the trial of charges.”

On the 25tli day of April, 1906, the relator was suspended as a clerk in the bureau of supplies, without pay, pending the trial of charges that lie had been guilty of deceit, falsehood, misconduct and neglect of duty. These charges were subsequently tried, resulting on the tenth day of October in the adoption of a resolution to the effect that “ Joseph Curren be and he hereby is, dismissed from the service of the Department of Education.” There is no suggestion on the part of the relator that this trial was not properly conducted, or that he was not properly dismissed from the service, but he seeks by a peremptory writ of mandamus to compel the audit and allowance of his claim for salary during the time that he was suspended from service, and the learned Special Term, following the supposed authority of O'Hara v. City of New York (46 App. Div. 518), has granted the writ, the respondents appealing from the order.

Wé are of opinion that the O'Hara case is distinguishable. In that case the plaintiff was unlawfully removed from office, and upon a proper proceeding was reinstated, and the court merely held that he was entitled to his compensation during the time that lie was unlawfully prevented from discharging his duties. That is unquestionably the law of this State. But in. the case now under consideration the relator was not unlawfully removed from office. Charges were preferred against him on the twenty-fifth day of April, and if he was guilty of the things charged against' him the board of education had the power to remove him on that day, for the language of the statute is that he may “ be removed for cause at any time.” To enable the board to properly try and determine the charges and at the same time to protect the public against impositions on the part of vicious or incompetent persons, the Legislature also provided that the officer might “be suspended by the. board of education pending the trial of charges,” and it would be strange if it was contemplated that a man who was concededly liable to dismissal "on the twenty-fifth day of April, because of misconduct in office, should be permitted during the term of his suspension to draw the salary attached to the office, where it appeared upon the trial that the facts warranted Ids dismissal at the time of the making of the charges. ' It seems to us clear that the legislative intent was to permit the suspension of the officer from the time the charges were made, and if the trial demonstrated that the charges were sufficient to justify his removal, that the determination related back to the suspension, and that the relator, being unworthy to hold the position, was not entitled to his compensation. " '

The cases of Gregory v. Mayor, etc., of New York (113 N. Y. 416) and Emmitt v. Mayor, etc., of New York (128 id. 117) do not conflict with anything here determined. In those cases the statute did not in terms provide for a suspension, but it was urged that the power to remove carried with it the power,to suspend indefinitely without pay, and the court held that under the facts in those cases this was not the law. In the Gregory Case (supra) the court -say : “ Whether the power to' remove includes the power to suspend, must, as it seems to us, depend, among other things, upon the question whether the suspension in the particular case would be an exercise of a power of the same inherent nature as that of. removal,, and only a minor exercise of such power, or whether it would work such different results that no inference of its existence should be indulged in, based only upon the grant of the' specific power to remove.” Here there is no such question; the statute gives the power of removal at any time, and as an incident to that power it provides that the party may be suspended pending the trial of the charges, and the inference-to be drawn is that it was the intention to make the removal at once effective, subject to. the result of the trial of charges. At least, in the absence of a controlling authority, this court is not disposed to say that a man who is concededly guilty of the charges preferred against the relator i's entitled to his pay during the time that he may Be able to avoid a trial, where the statute has provided for his suspension. We do not think the Legislature intended suCh a result.

The order appealed from should be reversed, with costs.

Jenks, Gaynor and Rich, JJ., concurred.'

Order reversed, with ten dollars costs and disbursements.  