
    Bernard Shane, Respondent, v. The City of New York, Appellant.
    First Department,
    December 30, 1909.
    Civil service, city of New York — suspension for lack of work — effect of section 1543 of the'city charter — salary during suspension.
    A person holding a position "in the classified civil .service of the city of New York - . is not entitled to- have his employment continued- so long as there is any work , to do and- money with which to pay him; but, on the contrary, he maty- be suspended without pay by the head of the department' when' the work can. be ■ better or more economically done -at other seasons of the year.
    By virtue of section 1543 of the -charter of the city of New York a person holding a classified -position who is “laid off” in good faith for lack of work is merely ' suspended, whether or no the position be abolished, and is entitled to reinstatement ;to a similar position- if within a year there .is any need fpr his - . services, • - -
    But having been given another position he cannot recover salary, for the time he was unemployed.
    
      It seems, that even if such employee were discharged in bad -faith and for the sole purpose of getting rid of him, he would not-be entitled to maintain an action -to recover back salary until he bad secured reinstatement to his former position by mandamus. '
    Appeal by the defendant^ Thé City of Hew York, from- an order ■ of the Appellate Term of the Supreme Court, entered in the office of theclerk of- the. county of Hew York .on thelth day of May, 1909, reversing a judgment of the Municipal Court of the borough of Manhattan in favor of the defendant,, entered on the 12th day of December, 1908, and directing judgment for the- .plaintiff;', and also¡ from the judgment entered in the office of the clerk of the,said Municipal Court on the 14th day of May, 1909, pursuant to said order of the Appellate Term.
    
      Terence Farley, for the appellant,
    
      Irving I. Kremer, for the respondent.
   McLaughlin, J.:

The plaintiff was employed as transitman and computer in the office of the president of the borough of Richmond, who, on the 14tli of February, 1908, notified him that on and after the first of March he would be “ laid off ” because of “ Lack of Appropriation.” About the first of March the plaintiff received two communications from the president, dated February twenty-ninth, one rescinding the former action “laying you off” for lack of appropriation, and the other “ laying you off ” from March first for “ Lack of Work.” On the sixteenth of June following he was appointed transitman in the department of sewers, borough of Manhattan, and then this action was brought in the Municipal Court of the city of New York to recover the salary of his former position from the time he Was “laid off” until his re-employment, the complaint alleging that he had been wrongfully discharged and prevented from working during that time, though he had been willing to perform his duties and had duly tendered his services. The complaint, after trial, was dismissed in the Municipal Court, but on appeal from the judgment entered to that effect the same was reversed ’by the Appellate Term and judgment directed for the plaintiff for the full amount claimed (63 Misc. Rep. 304), and the city, by permission, appeals to this court.

At the trial it appeared that the plaintiff had a position in the classified municipal civil service, and by reason of that fact the contention is made that the borough president had no power to suspend him without pay so long as there was any work for him to do and sufficient appropriation to pay him. This contention is based upon an erroneous assumption that once a person has obtained a position in the classified municipal civil service he must thereafter be employed, so long as there is any work to do and money to pay him ; in other words, that a borough president, or other person having charge of a department of the city government, which requires work to be done and money expended, has no discretion as to the time when such work shall be done and the expenditure made. This is not the law and ought not to be, because it may well be that certain kinds of work can be better and more economically done at onetime or season of the year than at another, and this must be left to the discretion of the officer having charge of the work and expenditure of the city’s funds. Section 1543 of the Greater Hew York charter (Laws of 1901, chap. 466) provides, among other things, that wherever in any department or institution an. office, position or employment is abolished or made unnecessary through the operation of this act, or in any other manner, * the person or persons legally holding the office or tilling the position or employment thus abolished or made unnecessary shall be deemed to be suspended, without pay, and shall be entitled to reinstatement in the same office, position or employment,, or in any corresponding or similar office, position or employment, if within one year thereafter there is need for his or their services.” The section further provides that the head of the department must, in" case of such suspension, certify the name-or names of such person or persons to the municipal civil service commission, and the person so suspended remains eligible for appointment to the same or similar positions in the order of their original appointments, in preference to others.

A considerable portion of the briefs presented is devoted to the determination of the question of whether the plain tiff was discharged or only suspended, and whether, his position was or was not abolished. The determination of such questions is unnecessary because under section 1543 of the charter the borough president had authority to terminate the plaintiff’s employment, and what he did was in effect to suspend him without pay for a year. It is perfectly obvious that the president was attempting to exercise his authority under the section referred to, for he promptly notified the civil service commission of his action and by reason of that fact plaintiff obtained his position as transitraan in the department of sewers a few weeks later. Although the word “ lay-off ” was used, it wás a sufficient indication of the president’s action. (People ex rel. Levenson v. Wells, 78 App. Div. 373; People ex rel. Frank v. Monroe, 99 id. 290.) .

If the action of the borough president was in bad faith, done for the sole purpose of getting rid of the plaintiff, then he was entitled to secure reinstatement by mandamus. (People ex rel. Corrigan v. Mayor, etc., 149 N. Y. 215; People ex rel. Bean v. Clausen, 50 App. Div. 324; Matter of Jones v. Willcox, 80 id. 167.) It may well be doubted whether he could maintain the present action to recover salary until he had been reinstated in his former position. (Sutliffe v. City of New York, 132 App. Div. 831.) But if the- action could be maintained without reinstatement I do not think the plaintiff was entitled to recover, arid I prefer to place my conclusion upon that ground.

The plaintiff was employed in the topographical bureau in the borough president’s office and his “ lay-off ” was due to the fact that the officials in charge of the work of that bureau deemed it advisable, in view of work being done, to reduce .the force accordingly. Them good faith in arriving at this determination is not questioned, and the only answer which the plaintiff makes to it is, that so long as there was any work which he could do and any money available to pay him, he was legally entitled to be employed. This apparently was the view entertained by the Appellate Term. The business of the city, like any other business, requires the employment of. more men at some times than at others. To hold, when fewer men are required, the maximum number must be kept at work so long as there is any work which can be given"'them, or any money with which to pay them, is contrary to every principle which underlies good business management as well as against public policy.

If the plaintiff had proved that the work had been curtailed and he and other employees removed with the intention and for the purpose of eventually supplanting them with other workmen, and then continuing the work, a different question would be presented, but here there is no such claim made; on the contrary, it seems to be conceded that the reduction in the force was made in the honest belief that such reduction was in the best interest of the city. That being so, it follows that the plaintiff was not unlawfully discharged. (People ex rel., Vineing v. Hayes, 135 App. Div. 19.) He could not have been reinstated in his former position and is not entitled to recover the salary of such position while he was unemployed. .

The determination of the Appellate Term, is, therefore, reversed and the: judgment of the Municipal Court affirmed, with costs to ■ the appellant in all courts.

Ingraham, Laughlin, Houghton and Scott, J.L, concurred. ’

Determination reversed and judgment of Municipal Court • affirmed, with costs to appellant in all courts.  