Jones v. City of Buffalo
| Decision Date | 15 March 1904 |
| Parties | JONES v. CITY OF BUFFALO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Fourth Department.
Action by George T. Jones against the city of Buffalo. From a judgment of the Appellate Division (79 N. Y. Supp. 754) reversing a judgment for defendant and granting a new trial, defendant appeals. Affirmed.
Charles L. Feldman, Corp. Counsel (Edward L. Jung, of counsel), for appellant.
Frank Gibbons, for respondent.
The plaintiff was a clerk having charge of a bureau in the police department of the city of Buffalo, and he brought this action to recover his salary. The complaint was dismissed at the trial, but the judgment entered against the plaintiff has been reversed by the court below, and a new trial granted. From this order and the judgment entered thereon the city has appealed to this court, stipulating for judgment absolute in case the judgment appealed from is affirmed.
The facts are practically undisputed. It appears that on the 22d day of July, 1896, the plaintiff was appointed to the position referred to, and his right to the salary of the place accrued on that day. The appointment was made pursuant to the provisions of the civil service law (Laws 1899, p. 795, c. 370), and the position was held by him protected by all the restrictions of that statute upon the power of removal. The plaintiff could not have been removed except upon notice, and for cause judicially established. From the date of his appointment until the 7th day of June, 1899, the plaintiff continued to occupy and discharge the duties of the position and receive from the defendant the monthly salary or compensation therefor. Upon that day he was removed by the board of police commissioners, and, of course, prevented from discharging any of the duties pertaining to the position, although he offered to perform the same, and was at all times ready and willing to do so, and so informed the board. Immediately upon the plaintiff's removal he procured a writ of certiorari against the police board, with the result that the plaintiff's discharge was declared to be illegal and void, and was vacated and set aside by the Appellate Division of the Supreme Court on the 24th day of July, 1900. People ex rel. Jones v. Diehl, 53 App. Div. 645,65 N. Y. Supp. 801. An appeal was taken from that decision to this court, and the order was in all things affirmed. 165 N. Y. 643, 59 N. E. 1128. The decision of this court was served upon the city authorities on the 30th day of January, 1901, and thereupon the board reinstated the plaintiff, who has ever since that time occupied the position, discharging the duties of the same, and receiving the salary therefor. When the police board removed the plaintiff, it immediately appointed another person in the place, who continued to occupy the position and perform the duties thereof until the time when the plaintiff was reinstated, and during this period the defendant paid to this incumbent the full salary. The comptroller and mayor of the city had knowledge of the fact of the plaintiff's removal by the police board and the reversal of that determination by the Appellate Division of the Supreme Court.
The question in this case is whether, when an officer or employé of a city protected by the civil service or by law against removal without cause has been illegally removed, and the illegality of the removal has been adjudicated by the courts, and notice thereof communicated to the city authorities, the municipality is protected from that time by payment of the salary made to a person who, by the adjudication, was a usurper, and not entitled to hold the place. The defense of the city in this case is that it has paid the salary which the plaintiff was entitled to receive to another person, whom the courts have held was not legally in the position. The point involved in this case was decided in this court in the case of McVeany v. Mayor, etc., of N. Y., 80 N. Y. 185, 36 Am. Rep. 600. The principle there laid down was stated by the court in these words: ...
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