Gregory v. Mayor

• Decision Date: 16 April 1889
• Citation: 21 N.E. 119,113 N.Y. 416
• Parties: GREGORY v. MAYOR, ETC., OF THE CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 416

21 N.E. 119

GREGORY

v.MAYOR, ETC., OF THE CITY OF NEW YORK.¹

Court of Appeals of New York.

April 16, 1889.

Appeal from supreme court, general term, First department.

The judgment appealed from affirms a judgment in favor of respondent, James Gregory, for salary as inspector to the board of excise of the city of New York, from December 15, 1880, to September 1, 1881. On the first-named date he received notice from the board that he was thereby ‘suspended without pay,’ but he continued to tender his services to the board during the period covered by the judgment, on the theory that that body had no power to suspend him.

Wm. C. Turner, for appellant.

C. W. West, for respondent.

PECKHAM, J.

The claim that the plaintiff was not an employé of the defendant does not seem to have been raised upon the trial. It was not included as a ground in the motion for a nonsuit made by the defendant, and does not seem to have been raised by any proper exception taken in the progress of the trial. The defendant at the end of the case asked the court to direct the jury to find a verdict for the defendant, and never asked that any question of fact should be submitted to it. The court was therefore placed in the position of the jury upon any such question, and the decision thereof by the court is binding upon us if there were any evidence to sustain it. The trial judge was amply justified by the evidence in holding as a fact that the plaintiff never received any notice of dismissal, and we are concluded by such finding. The only question that is left for discussion is whether the resolution of the commissioners of excise which assumed to suspend the plaintiff indefinitely and without pay from the performance of any of his duties was authorized. It is claimed that the power of the commissioners to suspend one of their employés was included in the conceded power to remove them. The question has not been decided in this state, but in New Hampshire the supreme court has held that the power to remove did include the power to suspend. Shannon v. Portsmouth, 54 N. H. 183. In that case it was merely stated in the opinion that it did not require any argument to show that the power to remove must include the power to suspend, and hence the learned court made use of none in deciding the question. The note to section 151 of Dillon on Municipal Corporations was cited as authority for the proposition. I think the section (151) is the same in substance as section 247 of the third edition of that work in two volumes. I have not found anything in the text of the learned author which would furnish any reason for the decision of the New Hampshire court. In the note to section 247, some cases are referred to, and in one of them it was assumed that what is called therein the minor power to suspend was included in the power to remove. State v. Lingo, 26 Mo. 496. In State v. Chamber of Commerce, 20 Wis. 63, the board of directors had assumed to suspend a member. The corporation was given power to expel. The court held that the power to suspend was reposed in the corporation, and could not be delegated to the board of directors, and hence the board had proceeded without authority. The suspension of the member, it was said, was a qualified expulsion, and, whether it was called suspension or expulsion, it disfranchised him either temporarily or permanently, and, as he was suspended by the board of directors without a vote of the members of the corporation, his suspension was unauthorized. There may be some distinction between the power to expel, or, in the technical language of the books, to disfranchise, a member of a corporation, and the power to remove an employé of a city board, and it might be argued that in the former case a suspension is, as the court said, a temporary disfranchisement, and an act of the same nature as an expulsion, and that the power to expel in such a case would include a temporary exercise thereof by a suspension. However that may be, the court seems to have placed its decision upon the ground that the suspension was within the power of the corporation, because it only accomplished a temporary deprivation of the rights of a member when the corporation had the power to make such deprivation permanent by an expulsion. On the other hand, in State v. Jersey City, 25 N. J. Law, 536, the effect of the resolution passed by the common council was held by the court to work a suspension of the member, if it had been valid. The council had power to expel for cause. It had once expelled the member for bribery, and he had been re-elected, and the council then adopted the resolution, which the court said was a virtual suspension. It was held that the council had no power to again even expel the member for the offense for which he had been once expelled, and subsequent to which he had been re-elected; and, as to suspension, the court said the charter vested no such power in the council, and that it would have been extraordinary if it did; that the power was to expel, not to suspend, because expulsion left the office vacant, so that it could be supplied by a new election, while suspension from duties created no vacancy, and left the constituency of the member unrepresented.

The case shows that there is nothing in the nature of the power to remove or...