
    John T. Hilton, Appellant, v. J. Sergeant Cram and Others, Respondents.
    First Department,
    March 23, 1906.
    Civil Service Law—action by veteran for damages against municipal board for reduction of salary— Civil Service Law, section SO, construed — mandamus to compel restitution of salary prerequisite to action for damages — Statute of Limitations.
    An action for damages given by section 1, chapter 831, Laws of 1896, now section 20 of the Civil Service Law, to a Union veteran in the public service against those reducing his compensation with the intent to bring about his resignation, does not lie until sqch veteran has first resorted to the mandamus authorized by said section to compel the restoration of his salary. He cannot acquiesce in the reduction of his salary or resign, wait until the Statute of Limitations has nearly run and then bring ah action for damages against the public officers who have reduced his salary.
    
      Qwcere, as to whether such action for damages is barred by the three-year Statute of Limitations under subdivision 3, section 383 of the Code of Civil Procedure, or by the six-year statute under subdivision 2, section 382 of said Code..
    Appeal by the plaintiff, John T. Hilton, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 11th day of April/ 1905, upon the dismissal of the complaint by direction of. the court at the opening of the trial at the Hew York .Trial Term.'
    
      Louis Sturcke, for the appellant.
    
      W. B. Crowell, for the respondents.
   Laughlin, J.:

The appellant is an honorably discharged soldier of the Union army. He was employed in the dóck department qf the -city of Hew York since 189Ó as a transitman. On the'11th day of March, 1898, he was receiving a salary of $150 per month, which the defendants, constituting the board of docks, on that day reduced to $100 per month. The plaintiff alleges that' this reduction was made with a view to bringing about his resignation, and he brings this action for damages 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 section 20 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws .of 1902, chap. 270), which, so far as material to this appeal, provides as follows: “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 act 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 motion for dismissal was made upon two grounds: (1) That the action was barred by the three years’ Statute of Limitation's prescribed in subdivision 3 of section 383 of the Code of Civil Procedure ; and (2) that the statute purporting to give the cause of action was unconstitutional. The court placed the dismissal upon the former ground; but if either ground was tenable, the judgment must be affirmed.

The question as to whether the action is barred by the Statute of Limitations depends upon whether it is governed by subdivision 3 of section 383, or subdivision 2- of section 382 of the Code of Civil Procedure. The' former prescribes a limitation of three years for an action upon a statute for a penalty or forfeiture where the action is given to the person aggrieved, or to that person and the people of the State, except where the statute imposing it prescribes a different limitation; ” and the latter prescribes a limitation of six years for an action to recover upon a liability created by statute, except a penalty or forfeiture.” How it is very clear that this is a cause of action “ to recover upon a liability created by statute.” The question, therefore, on this branch of the case narrows to the inquiry whether it is a cause of action for a penalty or forfeiture ” within the meaning of those terms as employed in these provisions of the Code. Ueither the word “penalty” nor “forfeiture” is used in the statute giving the cause of action, but that, while entitled to some importance, is not controlling. Ordinarily, the amount of a statutory penalty or forfeiture is fixed arbitrarily and is prescribed as punishment and has no relation to the damages sustained by the party who receives the benefit of the recovery; but this is not always the case and, therefore,, it is not controlling. Here the recovery authorized by the statute is the damages sustained by the aggrieved party for the wrong. The damages must necessarily be limited to compensation to the party whose rights have been violated. But that fact alone is not decisive of the question." concerning the Statute of Limitations. ' In the view we take of the case, however, we. deem it unnecessary to decide the question. as to which Statute of Limitations would be applicable. For we are of opinion ■ that no cause of action for-damages has accrued to the plaintiff. The plaintiff has not resorted to his remedy, by mandamus' to compel the defendants as such commissioners to rescind the resolution reducing his salary or to piass another restoring it. He stands upon the broad proposition that he may acquiesce in the reduction of his salary or resign and wait not merely three years, .but until the last day of "the sixth year, and then .bring an action against the public officials individually and recover from them individually the difference between the salary as reduced and as it stood before'reduction, not only for the intervening time, but for an indefinite time in the future, and such manifestly are- the possibilities of-his right of recovery if his contention that it is not; necessary to first resort to mandamus prevails. It'is evident that the Legislature. intended to give two remedies in every case. It follows, therefore, that the Legislature did not intend to authorize a recovery of damages, against public-officials individually, except in those cases where there was. a remedy by mandamus as well, for the twp remedies are expressly given. If the plaintiff had resorted to mandamus for a rescission of the resolution reducing his salary," or.for the adoption of a-resolution restoring' it, and were successful, it is • quite likely -that -there would remain' damages either iu loss of salary during the intervening period, or in costs or expenses of litigation beyond the recovery therein. Those- damages would be certain and capable of ascertainment; and*with á recovery limited to such damages and the prior -restoration of salary the employee would be fully indemnified, for all loss. 'The view that the employee may acquiesce in the reduction and remain in the service, or may resign, and in either case, after waiting until just" before the expiration of Six years, bring an action to mulct the officials personally in the damages consisting of the difference in salary, not only for the intervening time, but for such time in the future as the jury might believe he.would be able otherwise to hold the position, would bring about confusion in the public service and result in the award of damages based upon pure speculation. Such a .ruling would- be against public policy, for it would prevent public officials performing their duty to their constituents in reducing salaries where they ought to be reduced, lest at some time during the succeeding six years an action might be brought against them individually by the employees affected, and an effort made to convince the jury, which might be successful, that the reduction in salary was made with a view to compelling the employee to resign.

‘For these reasons, therefore, I think the judgment was right and should be affirmed.

O’Brien, P. J., Ingraham, McLaughlin and Houghton, J"J., concurred.

Jndgment affirmed, with costs. Order filed.  