
    Tarleton H. Bean, Plaintiff, v. George C. Clausen, Defendant.
    First Department,
    May 18, 1906.
    Civil Service Law— action for damages Tby veteran for wrongful removal from office — when prior legal proceedings for reinstatement not necessary.
    When an honorably discharged veteran is removed from public office for political reasons by the abolition of the office in bad faith, he has an action for damages against those removing him under section 1 of chapter 821 of the Laws of 1896 (now sections 20 and 21 of the Civil Service Law), if the prerequisite legal proceedings to compel his reinstatement have become impossible because jurisdiction over the department where the plaintiff was employed has been transferred to another department.
    McLaughlin, J. (concurring): Prior legal proceedings to enforce reinstatement are not prerequisite to an action for damages under the statute, and the case so holding (Hilton v. Oram, 112 App. Div. 85) was incorrectly decided.
    Motion by the plaintiff, Tarleton H. Bean, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint upon the pleadings and plaintiff’s opening at the New York Trial Term in December, 1905.
    
      Robert E. L. Lewis, for the plaintiff.
    
      Charles Blandy, for the defendant.
   Laughlin, J.:

This is an action by an honorably discharged soldier of the Union ■ army under section 1 of chapter 312 of the Laws of 1884, as amended by chapter 821 of the Laws of 1896, which has been since revised' in •'sections 20 and 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1902, chap. 270, and Laws of 1904 chap. 697) to recover damages for his, wrongful' removal Tor political purposes on the 1st day of April, 1898, from the position of “ Superintendent of Aquarium,” Battery Park, in the municipal service of the city of Hew York, department of parks* by the abolition, in bad faith, of the position by the defendant, as park commissioner, and the transfer of the duties thereof to another employee of the department. The plaintiff was appointed to the position on the 1st day of May, 1895,' after passing a competitive civil,service examination with a rating of ninety-nine and one-half per centum. After his removal he promptly instituted a mandamus proceeding for his reinstatement. The. defendant demurred to the alternative writ, and his demurrer was overruled both at Special Term and here. He then made a return- controverting certain material facts, and the issues were brought to trial- at Trial Term and the writ was dismissed. This court reversed on. a point of practice. . (People ex rel. Bean v.. Clausen, 74 App. Div. 217.) Before the. issues, were again reached. for trial,, the city entered into ah agreement with the Hew York . Zoological Society, for taking-over-and caring for "the aquarium, thereby taking it out of " the jurisdiction of the park department. The defendant contends that the statute gives the plaintiff no cause •of action against the defendant, and if it,does, he must first become reinstated by some appropriate legal proceeding. ■ The provisions of the statute are as follows: •

“ § 1. In every public department and upon. all public works of the State of Hew York, and of the cities, counties, towns and villages thereof, and also in non-competitive examinations under the civil service rules, laws or regulations of the same, wherever they apply,'honorably discharged Union soldiers, sailors and marines shall be preferred for" appointment, employment and prdmotion; age, loss of limb or other physical impairment which does not, in fact, incapacitate shall not be deemed to disqualify them, provided they possess the business capacity necessary-to discharge, the duties of the position’ involved. And no person holding a position by appointment or employment in the. State of Hew York or of the ■ Several cities, counties, towns or. villages thereof and receiving a salary or per’diem pay from the State or from any of the several cities, counties, towns or villages thereof, who is an honorably discharged soldier, sailor or marine, having served as such in the Union army or navy during the war of the Rebellion and who shall not have served in the Confederate army or navy, shall-be removed from such position or employment except for incompetency or misconduct shown, after a hearing upon due notice, Upon the charge made, and .with the right to such employe or appointee to a review by writ of certiorari • a refusal to allow the preference provided for in this a,ct to any honorably discharged Union soldier', sailor or marine, or, a reduction of his compensation intended to bring about a resignation, shall be deemed a misdemeanor, and such honorably discharged soldier, sailor or marine shall have a right of action therefor in any court of competent jurisdiction for damages, and also a remedy by mandamus for righting the wrong. The burden of proving incompetency or misconduct shall be upon the party alleging the same.. But the provisions of this act shall, not be construed to apply to the position of private secretary or deputy of an official or department or to any other person holding a strictly confidential position.”

It is not denied that the position held by the plaintiff fell within those enumerated in the last sentence of the act. The first contention is that his rights are. governed by the provisions of chapter 184 of the Laws of 1898 (amdg. Laws of 1888, chap. 119,'§ 1), and that he was not, and could not be discharged by the abolition of his position, but was transferred to some other branch of the service at the same compensation. The difficulty with that argument is .that it was alleged in the complaint and stated in the opening of counsel for the plaintiff, all of which was admitted by the motion to dismiss, that he was discharged without cause and for political reasons. Moreover, said chapter 184 of the Laws of 1898 is an amendment to other statutes, conferring upon various classes of veterans special privileges and rights and regulating the same, and it does not purport to amend or modify the statute upon which the action is based. The contention that the plaintiff should have first established his right to reinstatement by mandamus, certiorari or quo warranto, would require serious consideration were it not for the conceded facts that he did promptly resort to his remedy by mandamus, and that before he was able to obtain a final determination theréon, circumstances transpired which would render that proceeding ineffectual for any.purpose.. It is manifest that he could not be reinstated after the jurisdiction over the aquarium lawfully passed, out of the city-and into the hands of another corporation.

These facts clearly distinguish the case at bar from Hilton v. Cram (112 App. Div. 35), recently decided by this court. Without reinstatement or an adjudication in an appropriate legal proceeding in ' their favor establishing their rights. thereto, public officials cannot recover the salary of the office or position. (Hagan v. City of Brooklyn, 5 N. Y.Supp. 425 ; affd., 126 N. Y. 643 ; Van Valkenburgh v. Mayor, 49 App. Div. 208 ; Jones v. City of Buffalo, 178 N. Y. 45.) In Hilton v. Cram (supra) where it was. sought to recover damages under this statute for a reduction in salary calculated to bring about a resignation, we by analogy and upon grounds of public policy applied the rule of the cases last cited and-held that before' damages, which would ordinarily and mainly be los's'of salary, could be recovered, the plaintiff must resort to llis legal remedy to obtain an adjudication in his favor upon the lawfulness of the act or action of which;he complains.. ■ Whether the rule of Hilton v. Gram should be applied to all classes of cases ■ arising under the statute need not now be' decided; for it is clear that under the statute damage's may be recovered in case of a removal from office or the abolition of the office for political purposes, at least where, the right to reinstatement or restoration of the position cannot be first adjudicated in á legal proceeding. The controlling feature of the. Hilton case was the good of the public . service, and the difficulty of ascertaining the damages caused by a reduction in salary, calculated to .bring about a resignation, unless the legal proceeding for the restoration of the salary which would limit and fix the damages were first prosecuted. Here that has-become -impossible, and the same, facts which render it impossible ' place a limitation upon the damages recoverable.

It follows, therefore, that the exceptions should he sustained and the motion for a new trial granted, with costs to the plaintiff to. abide the ¿vent.

O’Brien, P.J., Patterson and Houghton, JJ., concurred.

McLaughlin, J. (concurring):

This case, I do not think, in principle can be distinguished from Hilton v. Cram (112 App. Div. 35), recently decided by this court. A further examination, however, of the question involved has led me to the conclúsion that that case was incorrectly decided, and for that reason we should not follow it, and, as it seems to me, our decision should be placed upon that ground and not upon the ground that the facts here distinguish this case from that. . The question presented here, and the principle to be applied is precisély the same as in the Gram case/

I, therefore, concur in the result of the opinion of Mr. Justice Laughlin.

Exceptions sustained, motion for new trial granted, costs to plaintiff to abide event. Settle order on notice.  