
    William O’Donnell, Respondent, v. The City of New York, Appellant.
    Second Department,
    October 22, 1908.
    Municipal corporations — unlawful discharge of stonecutter in city of ' Mew York—liability for salary.
    A foreman of stonecutters in the bureau of highways in the borough of Queens does not hold a statutory office to which the salary attaches as an incident; and, therefore, although, being a veteran, he was unlawfully discharged and afterwards reinstated, the city is not liable for his compensation during the period of removal.
    The reinstatement of such veteran does not relate back so as to continue his original employment.
    
      It seems, that the official who made the unlawful" discharge may be liable-person- • ally for the damage caused.
    Appeal by the defendant, The City of Hew York, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff.
    
      Theodore Connóly [Thomas F. Noonan with him on the brief], for the appellant.
    
      Gregg, Frank & De Witt, for the respondent.
   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, fireman. Ten months after-wards 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 cle 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) 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) “ 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 violated ” ; and 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). The case of Steinson v. Board of Education of N. Y. (165 N. Y. 431) 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) 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.

Woodward, Jenks, Hooker and Rich, JJ,, concurred.

Judgment of the Municipal Court reversed and new trial ordered,, costs to abide the event.  