
    The People of the State of New York ex rel. Thomas A. Pine, Respondent, v. James C. Martin, as Captain of the Thirty-third Separate Company, National Guard, New York, Appellant.
    
      The Civil Service Law of 1899 (Chap. 370)—it reserves to an armorer in a State armory, illegally removed, the right to recover his salary to the time the act took effect, but not to reinstatement — the ca/ptain discharging him is not personally liable for 'his sala/ry— the Veteran Acts did not apply to the military service.
    
    Section 29 of the Civil Service Law (Laws of 1899, chap. 370), providing that any right accruing prior to its passage should not be impaired and might be asserted and enforced as fully as if the former acts upon the subject had not been repealed by it, when construed in connection with the provision that the act does not apply to the military service, preserves to a person wrong fully discharged from the military service prior to its passage the right to recover his salary from the date of his wrongful discharge to the date when that act took effect, but not the right to reinstatement after the latter date.
    
      A captain in the National Guard of the State of New York, who unlawfully discharged an armorer in a State armory, whose salary, whqn certified hy the captain, was a charge upon the county, is not personally liable for the' salary of the discharged armorer.
    The Veteran Acts of 1894 and 1896, which by their terms apply to every department of the State of New York, were only applicable to the civil and not to the military service of the State.
    Pabkee, P. J., dissented.
    Appeal by the defendant, James 0. Martin, as captain of the Thirty-third Separate Company, Kational Guard, Kew York, from a final order of the Supreme Court, made at the Delaware Special Term and entered in the office of the clerk of the county of Delaware on the 22d day of January, 1900, directing the issuance of a peremptory writ of mandamus requiring him to reinstate the relator as armorer in the State armory at Walton, Kew York, and to pay him his salary from the 1st day of April, 1899, to the time of his reinstatement.
    Prior to April 1, 1899, the relator was armorer in the State armory at Walton. Upon that day he was discharged by the appellant without cause. This proceeding was brought upon June 26, 1899, to compel the appellant to reinstate the relator on the ground that his discharge was unlawful because he was a veteran and could not be discharged except for cause, and for any other relief to which he might prove himself entitled. > An alternative writ was issued and after a trial a final order was entered directing a peremptory writ, from which final order this appeal is taken.
    
      T. Sanderson, for the appellant. , •»
    
      Alex. Neish, for the respondent.
   Smith, J.:

Upon the 19th day of April, 1899, chapter 370 of the laws of that year took effect. That statute was in effect a codification of the Civil Service Law and the Veterans’ Acts, and it was therein provided that the act should not apply to the military service. It is claimed, however, that the saving clause in that act preserves to the relator the right to his reinstatement. The saving clause found in section 29 is undoubtedly broad and assumes to save all rights accrued, and provides that they may be asserted or enforced as fully as if the .former acts had not been repealed. By that act, however, the military service was absolutely divorced from the rules governing the civil service. To sustain this order we must hold that, notwithstanding the plan to exempt the military service from the rules of the civil service, they were nevertheless to be subject to those rules to the extent of reinstatement where an employee had, under the old statute, been wrongfully discharged. It cannot be that the statute would require the reinstatement of a man to be the next moment removed. This, to our minds, would be such an inconsistency as not to come within the fair interpretation of the saving clause of the statute. If the relator were wrongfully discharged he had a right to his salary from the first day of April to the nineteenth day of April, when the act of 1899 took effect. That right was preserved to him, but that right alone. This construction is consistent with the evident intent and spirit of the act of 1899, and the saving clause thereof is fairly satisfied.

The question remains then, can the order be sustained as to that part which directs the appellant to pay to the respondent his salary between April 1 and April 19,1899 ? We think not for two reasons: First. We are cited to no authorities which impose upon the appellant a personal liability for this compensation. The pay of the armorer is a charge upon the county. It is true that it has to be certified by the captain. We know of no statute, however, which makes the captain liable personally where he has refused to certify, or where he has unlawfully discharged an employee.

Second. Assuming that the captain is not personally liable, should the order be modified so as to require him to certify the relator’s compensation for the time of his unlawful discharge % This brings us to the proposition which was mainly urged upon the argument, to wit, that the Veterans’ Acts of 1894 and 1896 never applied to the military service. The acts by their terms apply to every department of the State of New York, so that, within the letter of the statute, the relator was entitled to the benefit of the acts. We are impressed, however, with the incongruity of a military department restricted by civil service regulations. No disciplinary power is given to the captain nnder the Military Code in case of a neglect of duty. That the armorer should have the protection of the Veterans’ Acts and could hold his office in defiance of the will of the commander at the armory would be subversive of military discipline. The method of his appointment is specified in the Military Code, and the power of appointment there is unrestricted. The act of 1899 itself, including the Yeterans’ Acts as a part of the civil service of the State, and exempting therefrom entirely the military service, is an index of the legislative view and of the legislative intention in the passage of those acts. We are of the opinion that the Yeterans’ Acts, so called, notwithstanding the broad language used, were applicable only to the civil service of the State. It follows that the discharge of the relator was authorized. As, however, by the literal interpretation of the statute, he would seem to have some rights upon this application, we think the order should be reversed, without costs.

All concurred, except Parker, P. J., dissenting.

Order reversed, without costs, and application denied.  