
    Robert S. Sutliffe, Respondent, v. The City of New York, Appellant.
    First Department,
    June 18, 1909.
    Municipal corporations — civil service — action by employee for salary covering period of illegal discharge — offset — rights of public officers and employees..
    Where a clerk in the classified municipal civil service in the city of New York, subject to a competitive examination, has been reinstated in his position on the ground, that he was unlawfully removed without being given an opportunity to make an explanation, the city, when sued for the salary which the clerk should have received during the period of removal, can offset the amounts earned by the employee in other occupation during the period.
    The rights of public officers and employees are governed by the following rules:
    
      Mrst. In the case Of a public officer, his salary, fixed by law, is an incident of the office and he is entitled to the same whether b e performs the services or not. If illegally removed he must-be reinstated by quo warranto proceedings before an action for his salary will lie. If in the meantime his salary has been paid toa defacto officer, he cannot recover the amount from the municipality, but has an action against the other officer for money had and received.
    
      
      Second. Clerks and. subordinates protected (a) by the provisions of the charter forbidding their removal without notice and an opportunity to be heard, (b) by the veteran laws, and (c) by civil service laws, covering positions in the classified service, subject to competitive examinations, while not public officers are public servants, whose tenure can he ended only by certain prescribed methods and procedure. They can compel their reinstatement by mandamus for illegal removal, such reinstatement being a condition precedent to an action for the salary covered by the period of illegal removal.
    
      Third. There is a class of employees in-minor positions whose pay depends upon work performed and who cannot, therefore, recover unless after service actually rendered.
    Appeal by the defendant, The City of Mew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk óf the county of Mew York on the 26th day of December, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of December, 1908, denying the defendant’s motion for a. new trial made upon the minutes.' ■
    
      Theodore Connoly of counsel [Royal E. T. Riggs with him on the brief], Francis K. Pendleton, Corporation Counsel, for the appellant.
    
      Samuel H. Ordway of counsel [Spencer, Ordway & Wierum attorneys], for the respondent.
   Clarke, J.:

On April 11, 1906, the plaintiff procured an alternative writ of mandamus to be issued out of the Supreme Court, which recited that whereas the plaintiff alleged that on March 1, 1901, after duly and successfully taking the required civil service examination therefor, he was duly promoted to the position of sixth grade -clerk in the department of parks, which was a position subject to competitive examination, and that his salary was duly-fixed at the rate of $2,000 per annum, and that the duties which he performed were those of a regular clerk, and that lie was discharged on January 22, 1904, contrary to the. provisions of section 1543 of the Greater Mew York charter in that no opportunity was given to him to make an explanation. The said alternative writ commanded the commissioners of parks to forthwith reinstate relator to the position of sixth grade clerk in'the department of parks in the city of New York, formerly held by him at a salary of $2,000 per annum, or show cause why the command in the writ ought not to be obeyed. A return having been filed to said writ, the issues came on for trial and the relator obtained a verdict, whereupon and on January 8, 1907, a peremptory writ was issued commanding the commissioners to forthwith reinstate and re-employ said relator in the position of sixth grade clerk in the department of parks, formerly held by him. An appeal was taken to this court which affirmed the final order granting the peremptory writ of mandamus by order entered June 21, 1907. (People ex rel. Sutliffe v. Herrman, 120 App. Div. 879.) On July 29, 1907, he was reinstated and within two or three days thereafter he resigned.

The plaintiff testified on this trial that after his discharge he entered the employ of the New York Telephone Company, where he still is, and that during the period covered by this suit he received from the ¡New Yoik Telephone Company more than the amount of his claim here.

This action is to recover $7,049.23, being the salary at the rate of $2,000 a year from January 22, 1904, to the date of. his reinstatement. The trial court directed á verdict for the full amount, with interest,- and from the judgment entered thereon and the order denying a new trial the city appeals.

The judgment in the mandamus proceeding conclusively establishes that the plaintiff was a regular clerk in the sixth grade within the classified civil service in the competitive class at a salary of $2,000 per annum, and that he was improperly removed for a violation of the provisions of section 1543 of the revised charter, chapter 466 of the Laws of 190Í, which provides: “ But no regular clerk or head of a bureau, or person holding a position in the classified municipal civil service subject to competitive examination, shall be removed until he has been allowed an opportunity of making an. explanation.” The question presented upon this appeal is whether the citv is entitled to offset, in an action to recover the salary attached to the position during the period of illegal removal, the amounts earned by the plaintiff in other occupations.

The respondent claims that it has not, that the salary is an incident of- the position, and that being entitled to the position he was entitled to the salary whether services were tendered or not, and without offset or deduction, and that to this ¡position should be applied the rule of law applicable to public officers where it is conceded that the salary .is an incident-of the office. ■ The appellant claims that subordinate positions in the public service do not come under that rule; that the action is of the nature of an action for damages for breach of a .contract of employment where the damages are measured by the agreed compensation,, but are subjechto offset for moneys' earned elsewhere. This is the-, rule so far as private employment is concerned, and the appellant.claims■ that shell rule, should be here applied.

The respondent advances a somewhat fanciful argument that ■irrespective of other considerations, inasmuch as the law of the State governing the civil service contemplates stability of. employment, when public officers, in disregard of statutory provisions, unlawfully discharge employees, the city should be compelled to pay the full amount of the unearned salaries,, so that the .officers having the power of appointment and removal may be forced to obey the. law. If the action was directed' against the officer so offending that argument might be. worthy of consideration, but as' it is, the effect would be to fine, the 'city for .the improper act of one' of its officers in' order to give to a removed employee, who lias suffered no pecuniary, damage by reason of his removal,, a gratuity by way of smart money. That argument does not-impress us-.

I think from an examination of the authorities in this State that the following' propositions, may be held to have been established : First. In the case of-'a public officer, his salary fixed by law is an incident of his office, and he is entitled to the same wlietliér he performs the services or not. (Fitzsimmons v. City of Brooklyn,. 102 N. Y. 536 ; Gregory v. Mayor, etc., of N. Y., 113 id. 416 ; Emmitt v. Mayor, etc., of N. Y., 128 id. 117.) If lie has been illegally removed from office he must first, by appropriate proceedings, in the nature of quo warranto, be reinstated thereinbefore an-action will lie. for such 'salary. If it shall appear that, during the period of Jiis- separation from the service his salary has been paid to a de facto officer, lie cannot . recover the amount from the city but has a righ tof action over against said officer for money had and received. (Dolan v. Mayor, 68 N. Y. 274; Mc Veny v. Mayor, 80 id. 190 ; Nichols v. MacLean, 101 id. 526; Hagan v. City of Brooklyn, 126 id. 643. Second. That clerks and subordinates who are protected in their positions by (a) the provisions of the charter which forbid their removal without notice and an opportunity to be heard, (b) by the veteran laws, and (c) by the civil service laws covering positions in the classified service, subject to competitive examination, while not public officers, yet are a class of public servants whose tenure is made stable,-their term of employment indefinite and subject only to be put an end to by certain prescribed methods and procedure, and that such clerks and subordinates have the right of proceeding by mandamus to procure reinstatement when illegally removed, and that a reinstatement of Such clerks and subordinates is a.condition precedent to an action for salary for compensation for the period covered by the illegal removal. (People ex rel. Corkhill v. McAdoo, 98 App. Div. 312 ; People ex rel. Hoefle v. Cahill, 188 N. Y. 489.) Third. That there is a class of employees in minor positions whose pay does depend upon work performed and who cannot, therefore, récover unless for services actually rendered. (Terhune v. Mayor, etc., of N. Y., 88 N. Y. 247; Higgins v. Mayor, etc., of N. Y., 131 id. 128; Cook v. Mayor, 9 Misc. Rep. 338; affd., 150 N. Y. 578.)

So far as the second class above enumerated is concerned," I think it clear they are not public officers. If they were, as pointed out in numerous cases, mandamus to procure reinstatement would not lie, but they would be required to proceed by an action quo warranto. If, however, they have been unlawfully removed and then reinstated, they have a cause of action. The exact nature of that action does not seem to have been clearly defined. As they are not public officers, the action was obviously not to recover salaries incident to that office. Their relation to the city is not entirely contractual in its nature. They have no vested right which prevents the abolishment of the position or change of salary, except as governed by the provisions of law. To these positions in the exercise of public policy is attached the principle that the city will not be obliged to pay twice for the same service. Payment to the defacto occupant is a defense to the action of the de jure occupant as in the case of a public officer. Admitting the fact that such clerks and subordinates obtain appointment and promotion in accordance with the provisions" of law* and that they have a certain stability of employment-, that they cannot be discharged, except in conformity to law and are entitled to reinstatement, I can see no reason in principle why the question of what they are entitled to recover on being reinstated should not be governed by the rule applicable in actions for damages for breach of contract of employment, with this difference, that in the public - service the courts have established the proposition that the discharged employee must first be reinstated before he may recover at alh The amount of recovery will then be frima faoie the. amount of salary or compensation fixed by law or regulation, and if ,the plaintiff proves the breach, which is established, of course, by the proof of his, reinstatement, then he will be entitled to that amount, subject, however,, to the public policy which says that if the public employer lias once paid for services to the one rendering" them, it will not be held liable again to the'one who ought to have been allowed.to render them. Looked at in this light, it is. quite clear that the city may offset against such damages amounts earned, hs :is the case with a private employer, for it is the duty of the discharged. employee to reduce his damages, and he is to recover only for liis loss and not by way of fine, amercement or gratuity. In Gutheil v. City of New York (119 App. Div. 20) a new-trial was granted in:.a suit by a member of the uniformed force of the street cleaning department, toi permit evidence of earnings when-out of the service to be proved as an offset and the subsequent judgment with such' deduction was affirmed (129 App. Div. 891).

It is quite impossible to reconcile all the cases upon- this subject." Many of them were mandamus cases where tlie one point in issue being reinstatement, incidental questions wereialluded to without the force of authority. In others questions have gone up Upon 'dismissals of . the complaint or upon demurrer where the precise question of. ho\v much might be recovered has not been before the court. Recognizing the want of harmony in the cases and that a plausible, and perhaps strong, argument may be made in support of the contention of the respondent, mevertheless we- are cobvincéd, the question being squarely" presented in the case at bar, that it is our duty to deal with it on principle, and so dealing with it we are unable to perceive why the rule as regards public employment in- regard to those positions which are not within. the accepted definition of public officers should differ from that applied in private employment. -

Therefore, as the plaintiff conceded that for the period in suit he had received in other employment more than the amount for which he sued the city, the direction of a verdict in his favor for the amount claimed was error.

The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order signed.  