
    (28 Misc. Rep. 258.)
    O’HARA v. CITY OF NEW YORK.
    (Supreme Court, Trial Term, New York County.
    June, 1899.)
    1. City Employes—Veterans—Unlawful Discharge.
    Where a city employé, a veteran of the Civil War, was removed in violation of Laws 1896, c. 821, and was reinstated after mandamus proceedings begun, and was at all times ready and willing to discharge his duties, and tendered performance thereof, he is entitled to recover compensation for the time he was prevented from performing his duties.
    
      2. Same—Recovery of Compensation.
    Where a city employé was illegally discharged, and thereafter reinstated after mandamus proceedings brought, he cannot, in addition to compensation for the time of his removal, recover costs and counsel fees in the mandamus proceedings.
    Action by John L. O’Hara against the city of Hew York. Judgment for plaintiff.
    Laughlin Bros. & Laughlin, for plaintiff.
    John Whalen and C. W. Bidgway, for defendant.
   McADAM, J.

The plaintiff, a veteran of the late Civil War, was appointed in Hovember, 1888, a cleaner, and subsequently a watchman, in the county court house, at $14 a week, which he received until October 24, 1898, when he was arbitrarily discharged by the commissioner of public buildings. Ho charges were preferred against the plaintiff, and consequently there was no pretense of a hearing or trial. The plaintiff applied to the court for reinstatement, invoking the remedy by mandamus, whereupon the commissioner immediately prior to the.hearing upon the writ on December 28, 1898, reinstated the plaintiff' to his former position. The action is for the specified salary during the interim. The removal was in violation of chapter 821 of the Laws of 1896, which, as far as pertinent hereto, provides that “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.” The question involved is as to the right of the plaintiff to recover compensation for the time he was deprived of his position and during which he performed no services. In Terhune v. Mayor, etc., 88 N. Y. 247, and Higgins v. City of New York, 131 N. Y. 128, 30 N. E. 44, it appeared that, after the plaintiffs therein had been removed, other persons were appointed in their places, and the salaries belonging to such positions were paid by the city to the de facto incumbents who performed the services, and the court, upon that ground, held that the plaintiffs, after reinstatement to their respective positions, could not compel the city to again pay such salaries. In this case there is neither allegation nor proof that any one was appointed to or had performed the duties belonging to the plaintiff’s position. Indeed, it seems to have been kept open, for the plaintiff was reinstated thereto by the voluntary act of the commissioner before the court, had heard argument upon the writ which it had granted. The case, then, is substantially one where the plaintiff' was prevented from performing his official duties by the act of the commissioner under the pretense of a removal which he had no right to make. The plaintiff was at all times ready and willing to discharge every duty, and the tender of performance, under such circumstances, ought to be deemed equivalent to performance, and entitle the plaintiff to the compensation belonging to the position. The court, in the Higgins Case, supra, in speaking of the decision in • the Terhune Case, supra, said:

“The fact that there the plaintiff held a public salaried office, while here the plaintiff was employed rather in the capacity of a laborer, at a compensation fixed at a daily rate, is of no evident effect upon the legal question of the city’s liability.”

If this be so, then this case falls within the rule declared in Fitzsimmons v. City of Brooklyn, 102 N. Y. 536, 7 N. E. 787, where the plaintiff was allowed to recover the salary belonging to his office, while prevented for a time by no fault of his own from performing the duties thereof. The act of 1896, supra, was especially designed, to protect all veterans of the Civil War, and if the rule "no work no pay” is to be applied to the plaintiff, it is difficult to discover wherein that enactment gives veterans any substantial advantage over those who have not a war record. The act of 1896, supra, was repealed April 19, 1899 (Laws 1899, c. 370)'; but the repealing act expressly provides that no right accrued prior to such repealing act shall be affected or impaired thereby, but may be enforced as fully, and to the same extent, as if said repealing act had not been passed. The claims for costs and counsel fees in the mandamus proceedings are not in this instance recoverable, and must be disallowed. Clason v. Ferry Co., 20 Misc. Rep. 315, 45 N. Y. Supp. 675, affirmed in 27 App. Div. 621, 50 N. Y. Supp. 160.

There will be judgment in favor of the plaintiff for |137.13, the amount of the unpaid salary and the accrued interest thereon.  