
    The People of the State of New York ex rel. William H. Walker, Respondent, v. John F. Ahearn, as President of the Borough of Manhattan, City of New York, Appellant.
    First Department,
    June 17, 1910.
    Mandamus — matters determined on granting alternative writ are res ádjudicata — damages may be awarded although there be no false return — public officer — when borough president not personally ■ liable in damages for removing head of bureau — city is npt liable where salary paid to de,facto incumbent.
    Where the right of a borough president to remove his appointee from .-the position o.f superintendent of public buildings without a hearing, depended upon whether the person removed was the head of the bureau within the contemplation of the charter and upon whether the ¡president had a right to create such bureau, and on an argument of those issues the Appellate Division granted an alternative writ of mandamus to test the validity of the removal, there was a •determination that the borough president was authorized to create the bureau and that mandamus was the proper remedy, which matters are res adjudiadta on a subsequent appeal from a final order after trial under the alternative writ.
    Evidence examined, and held, that the borough president exercised'his authority in creating the bureau in such manner as to make his acts effective for that purpose,
    On the trial of an alternative writ of -mandamus the final order for a peremptory writ may award the relator such damages as .he might have recovered in an action -against the respondent for a false return, even though there he no adjudication that the return-is false.
    But it. does not follow that he is entitled to damag.es if .the facts would npt authorize them in another action or proceeding.
    
      Such borough president cannot be charged personally with damages for the loss of salary suffered by the relator during his removal from office, where the removal was made in good faith, without improper motive, through a misunderstanding as to his powers under the charter.
    Moreover, such damages cannot be recovered even from the city, had it been made a party, where it appears that the office was filled by a de facto incumbent to whom the salary was paid. The city itself would only be liable for salary from the time the relator’s rights were adjudicated, and, it seems, his only recourse is an action over against the de facto officer who was removed. But the city would be liable for such portion of the salary as had not been paid to the other incumbent.
    In mandamus damages cannot be recovered against a person not made a party.
    Appeal by the defendant, John F. Ahearn, as president of the borough of Manhattan, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of. New York on the 27th day of May, 1909, denying the defendant’s motion for a new trial made upon the minutes, and also from a final order of said court, made at the New York Special Term and entered in the said clerk’s office on the 26th day of July, 1909, diz-eeting that a peremptoz-y writ of mandamus issue to the defendant commanding him to restore and reinstate the z-elator in the position theretofore held by hizn of superintendent or head of the bureau of public buildings and offices izi the boz-ougjz- of Manhattan, city of New York, “ together with all the rights,.benefits and eznoluznents thez-eof,” and directing that the relator recover fronz the defendant, individually, the sum of $10,723.30 daznages, étc., and also by John F. Ahearn, in his official capacity through the coz-poz-atioiz counsel and by him individually through another attoz-ney, fr.om a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of July, 1909, pursuant to said final oz-dez-, with n'otice that said fizzal order will also be reviewed ozz each of said appeals.
    
      Terence Farley [Theodore Connoly with him on the brief], for the appeals taken in the name of the corporation counsel.
    
      Charles L. Hoffman [Henry A. Friedman with him on the brief], for the appellant Ahearn individually.
    
      Herbert C. Smyth [John W. Browne and Frederic C. Scofield with him on the brief], for the relator, respondent.
   Laughlin, J.:

This is an application for a mandamus to compel the reinstatement of' the relator to the position of superintendent or head of the bureau of public buildings and offices in the borough of Manhattan, city of New York, from which he was removed by appellant Ahearn, as president of the borough of Manhattan, on the 16th day of May, 1907. The application was originally denied at Special Term, but on appeal to this court the order was reversed and an alternative writ was granted. (129 App. Div. 912.) The theory upon which the proceeding was instituted was that ther position held by the relator was the head of á bureau and that he could not be lawfully removed therefrom without notice and an opportunity to explain the charges made against him, pursuant to the provisions of section 1643 of the Greater New York charter. (Laws of 1901, chap. 466.) -He was removed without notice or opportunity to make an explanation of charges preferred against him. The theory upon which the president of the borough acted was that the position held by the relator was'not the head-of a bureau within the contemplation of the provisions of said section, of the charter, and that no bureau of public buildings and offices in the borough of Manhattan had been lawfully created. On the former appeal to this court that question was fully argued and the effect of the decision of this court in granting the alternative writ- necessarily was that the borough president was authorized to create such a bureau, and that mandamus was the proper remedy, for otherwise nothing to avail the relator could have been.'accomplished by -issuing the alternative writ. A question of fact was presented by the petition and opposing affidavits as to whether or not such a bureau had been-created by the borough president, and this necessitated the granting of an alternative writ of mandamus. . On the trial before the court, and jury.on the alternative writ and the return thereto, the material facts-with respect to the creation of the bureau were" matters of record and thereupon a question of law was presented ás to whether the acts of the borough president were sufficient in law to constitute the due creation of the bureau. The court ruled that they were and accordingly directed a verdict in -favor of .the relator. On proof of a computation of the amount of the relator’s salary during the period from the time of 1ns removal until the date of the trial, the court directed the jury to assess the relator’s damages in that amount with, interest. No issue had been presented with respect to these damages and the court acted solely on the theory that- the provisions of section 2088 of the Code of Civil Procedure afforded authority therefor. The matter was then brought on at a Special Term, and a final order entered directing that a peremptory writ of mandamus issue to the defendant Aliearn, as president of the borough, commanding him to reinstate the relator ‘‘ together with all the rights, benefits and .emoluments ” of the office, and that the relator recover of Aliearn individually the sum of $10,723.30 damages, being the amount of said salary with interest, together with costs and disbursements to be taxed, and that the relator have judgment and execution therefor. The judgment follows substantially the directions contained in this order.

Regarding as we do the decision on the former appeal as res adgudieata, of the question with respect to the. power of the president of the borough of Manhattan to create the bureau, we are of opinion that the uncontroverted evidence sufficiently shows that he exercised the authority in a manner to make his acts effective for that purpose.

Said section 2088 of the Code of Civil Procedure, under which relator’s damages have been assessed, provides as follows: “ Where a return has been made to an alternative writ of mandamus, issued upon the relation of a private person, the court, upon making a final order for a peremptory mandamus, must also, if the relator so elects, award to the relator, against the’ defendant who made the return, the same damages, if any, which the relator might recover, in an action against that defendant, for a false return. The relator ■ may require his damages to be assessed upon the trial of an issue of fact, if the verdict, report, or decision is in his favor. Where lie is entitled to a final order, for any other cause, he may require them to be assessed as in an action. Such an assessment of damages bars -an action for a false return.” Throop in his note to this section states in substance that it was taken from sections 57 and 58 of title 2 of chapter 9 of part 3 of the Revised Statutes, which, as he puts it, were “ consolidated, without material alteration, except possibly by the addition of the clauses in the first sentence allowing the relator to elect to take judgment for damages and of the last three sentences. It is supposed, however, that .the effect of these amendments is merely to remove the obscurities of the original. As .already stated in the note to § 2083,.a/nte, the-origin of the provisions relating to. damages as for a false return,, is explained, and their meaning rescued from considerable obscurity, by Marvin, J., in People v. Richmond Supervisors, 28 N. Y. 112.” Said sections 57 and 58 of the Revised Statutes (2 R. S. 587) were as follows:

“ § 57. In case a verdict shall be found for the person suing such writ, or if judgment be given for him upon demurrer or by default, he shall recover damages and costs, in 1 ike manner as he might have done in such action on the case as aforesaid, and a peremptory mandamus shall be- granted to him without delay.
“ § 58. A recovery of damages by virtue of this Article, against any party who shall have made a return to a writ of mandamus, shall be a bar to any other- action against the same party, for the making of such return.”

The action on the case to which reference is made in said section 57 relates to the provisions of section 55 of the same, title of the Revised Statutes (2 R. S. 586), which after providing that the person prosecuting the writ may demur or plead to all or any of the material facts contained 'in the return thereto, and that the person making the return “ shall reply, take issue or demur,” then provides “and the like proceedings shall be had therein .for the determination thereof, as might have been had, if the person prosecuting such writ had brought his action on the case for a false return.”

Said sections 57 and 58.were taken from sections 2 and 3, volume 1, Revised Laws, page 107, which was a re-enactment without change of the provisions of chapter 11 of the Laws of 1788. The original statute, as appears by the revisers’ notes to the Revised Laws and by the decision of the Court of Appeals in People v. Supervisors of Richmond (28 N. Y. 112), was taken from the statute of 9th Anne (Chap. 20), and it is, therefore, to he construed in the light of the rules of pleading at common law. .It authqrizedthe party applying for the writ “ to plead to or traverse all or any the material facts_ contained ” in the return, and it provided that the party making the return “shall reply, take issue or demur” to' the pleading or traverse of the moving party. In the revisión of the statute made by the original enactment of the Revised Statutes the word “ demur ” was subtituted for the word “ traverse ” in the quotation last made, which literally contemplated a demurrer to the return. The effect of this change, if the statute be construed literally, was to give the relator the right to recover his damages on an adjudication that his demurrer to the return was well taken, which could only be true where the return is insufficient in law upon the face thereof, and would' not involve any adjudication with respect to the falsity of the return, for it would on such demurrer necessarily be assumed to be true. In State ex rel. Alexander v. Ryan (2 Mo. App. 303), under a similar statute enacted literally from the same origin, it was held that the Legislature only intended to authorize the recovery of damages where'the adjudication wat such as to show the falsity of the return. That question, however, may not be regarded as an ojien one in this jurisdiction in view of the decision .of the Court of Appeals in People ex rel. Goring v. Wappingers Falls (151 N. Y. 386), where that court reversed a_ decision of the Sjiecial Term, which had been affirmed by the General Term (91 Hun, 317), and had been made upon the theory that the Legislature did not intend to authorize the recovery of damages in a mandamus proceeding excepting where the return was false. That decision must be regarded by this court as authorizing a recovery of damages in some instances, at least, even though there be no adjudication that the return was false. It does not, however, hold that the Legislature intended to give a cause of action where one did not .exist. At most it merely holds that the Legislature intended to authorize the recovery in the mandamus proceeding of damages which could be recovered on the same facts in another action or proceeding, either by virtue of some statutory authority or of a common-law liability.

There is here no adjudication that the return was false. At most tlie president of the borough either misunderstood the true, construction of statutory provisions or the legal effect of the official acts of his jiredecessor in office with respect to the creation of the bureau, and for aught that appears he may have acted on the advice of the corporation counsel, who was constituted by law his legal adviser in the performance of his official duties. (See Greater New York Charter [Laws of 1901, chap. 466], § 255.) There was no charge or issue concerning his motive or his purpose in removing the relator. Surely he cannot, in these circumstances, for a mere "error of judgment with respect to the law,.made innocently and in good faith, be liable to a subordinate whom he removes. It would be contrary to publi'c policy to hold officials liable for damages in a civil action for an unauthorized removal of a subordinate,- in the absence of bad faith or improper motive. The order and judgment, therefore, in so far as it is adjudged that' Ahearn is individually liable for the amount .of this salary, is unauthorized.

We are of opinion also that the provision by which the relator is reinstated with the right to his salary from: the time of his removal was unwarranted. It appears that the office was filled by the appointment of Voorhis, who has been brought into the proceeding. It is probable, although it does not appear, that the city has paid some or all of this salary to him. If so it is not liable to the relator, for it would only become liable to -him from the time his rights were adjudicated, and his only recourse, would be an action over against the de facto officer who has received it. (Higgins v. Mayor, etc., 131 N. Y. 128; Dolan v. Mayor, etc., 68 id. 274; Mc Veany v. Mayor, etc., 80 id. 185; Terhune v. Mayor, etc., 88 id. 247; Demarest v. Mayor, etc., 147 id. 203 ; Martin v. City of New York, 176 id. 371. See, also, Jones v. City of Buffalo, 178 N. Y. 45.) In so far as the city has not paid the' salary to another, the relator would undoubtedly be entitled to recover it in" an action (Dolan v. Mayor, etc., supra), and the effect of this statutory provision, notwithstanding the fact that there is no false,.return, would be to authorize him to recover it here were the city a party to the proceeding, but the city is not, strictly speaking, a party to the proceeding and did not make the return, and the authority to award damages-is confined to awarding them against the party who made the return.

The judgment and final order are, therefore, modified.by limiting the provisions thereof awarding relief to the reinstatement of the relator, with costs of the proceeding against the respondent as president of the borough of Manhattan, city of Hew York, ’"that being the capacity in. winch the proceeding was instituted • against him,. and as modified affirmed, without costs.

Clabke, J., concurred.

Ingraham, P. J. (concurring):

I concur with Hr. Justice Lau&hlin. Under the provisions of section 2088 of the Code of Civil Procedure, where a writ of mandamus is finally ordered, the relator is entitled to recover his damages against the defendant who has interposed a return, and these damages were to be “ the same damages, if any, which the relator might recover, in an action against that defendant,- for a false return.” How, it seems perfectly clear that any damages that the relator has sustained before the return was interposed could not be the damages caused by a false return, assuming that a “false return” is synonymous with an insufficient return. In this case, if no return had been interposed, the relator would have been entitled to a writ to reinstate him in the position from which he had been removed. The only damage, therefore, which could be caused to the relator by reason of a false or insufficient return was his salary from the time that he would have been entitled to receive it after his reinstatement and the time of the final order reinstating him.

I am inclined to think that the relator was entitled to have his damages assessed and a recovery therefor by the final order (People ex rel. Goring v. Wappingers Falls, 151 N. Y. 386), but as such damages were there caused by the interposition of the return, the relator was confined to such an amount as would compensate him for the loss that he had sustained by being kept out of his office from the time that he would have been reinstated if no return had been interposed to the date of the final order. The relator did not claim these damages, and there seems to be nothing in the record from which the amount could be determined.

I, therefore, concur with Hr. Justice Laughlin in reversing the order as against the defendant personally.

Hiller, J., concurred.

Scott, J. (concurring):

I concur in the modification of the final order, and should be willing to go further and vote for a reversal of both order and judgment, except that we are concluded by our former decision allowing an alternative writ of mandamus to issue. (129 App. Div. 912.) By that decision, although no opinion was written, we necessarily held that upon the facts alleged by the relator, and afterwards proven upon the trial, the relator was entitled to reinstatement. . A re-examination of the question has caused me to greatly doubt the correctness of that decision. Section 1543.of the revised charter of the city of New York (Laws of 1901, chap. 466) protects, inter alia, heads of .bureaus from summary removal without an opportunity of making an explanation. This applies to heads of bureaus, authorized by law. The mere fact that the head of a department as a matter of administrative detail, calls the employees engaged in any particular class of work a “ bureau,” and designates one of those employees to be its head, does not constitute the latter the “ head of a bureau ” within the meaning of the charter and entitle him to the protection of the section aboye cited. This appears to have been the situation in which the relator was placed. The case of People ex rel. Collins v. Ahearn (193 N. Y. 441), upon which relator relies, dealt with the power of the borough president to create a bureau of highways. It was found that he hkd such power, not because the revised charter of 1901 expressly conferred that power upon him, but because it by section 388 conferred upon him all the powers which prior to January 1, 1902, had been conferred upon the commissioner of highways, who had possessed, by virtue of section 458 of the charter of 1897 (Laws of 1897, chap. 378), power-to “organize- such bureaus as he shall from time to time - deem necessary.” Hence, as it was held, so far as concerned the highways, the power to organize bureaus was conferred upon the borough president. For the same reasons, and upon a similar state of the law People ex rel. Michales v. Ahearn (111 App. Div. 741) was overruled. The present case is different. The duties assigned the relator were formerly imposed upon the commissioner of public buildings, lighting and supplies. (Charter of 1897, §§ 572-588* as amd. by Laws of 1900, chap. 629.) By the charter of 1901 the duties of this commissioner were redistributed, a part being imposed upon the department of water supply, gas and electricity. (§§ 519-530, as amd.) Upon the borough president through his commissioner of public works was devolved the cognizance and control “ of the construction, repairs * * * of- public buildings ' * * *.” (§ 383, subd. 10, as amd. by Laws of 1907, chap. 383.) Nowhere in the revised charter of 1901 is there to'be found authority in the borough president to create a bureau of public buildings and offices, either by direct enactment, or by reference to the power in that regard formerly possessed by the commissioner of public buildings, lighting and supplies.. (See charter of 1897, § 458.) Instead of that the revised charter (§ 383, as amd. by Laws of 1907, chap. 383) conferred upon the borough president power to appoint a commissioner of public works, who was especially charged with exercising the administrative powers of the president of the borough relating to public buildings and supplies. The authority of the borough president to create a bureau of highways, and a bureau of sewers, derived by reference, from the charter of 1897 (Laws of 1901, chap. 466, §§ 388, 389), does not exist in the case of public buildings because no such reference is to be found with respect thereto in the revised charter of 1901. Hence, as it now appears to me, the Collins case is not decisive of the present case.

Judgment and order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.  