McGraw v. Gresser

• Decision Date: 18 March 1919
• Citation: 226 N.Y. 57,123 N.E. 84
• Parties: McGRAW v. GRESSER.
• Court: New York Court of Appeals Court of Appeals

226 N.Y. 57

123 N.E. 84

McGRAW

v.GRESSER.

Court of Appeals of New York.

March 18, 1919.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Thomas J. McGraw against Lawrence G. Gresser. Judgment for plaintiff was affirmed by the Appellate Division (176 App. Div. 887,162 N. Y. Supp. 1129), and defendant appeals. Affirmed.

Plaintiff was executive clerk in the office of the president of the borough of Queens in the city of New York. He had served a term in the volunteer fire department of Long Island City and was wrongfully removed from his position by the defendant, the president of the borough, for political reasons and without a hearing (Civil Service Law [Consol. Laws, c. 7] § 22), and the position was filled by the appointment of another.

After his removal he was reinstated in his position, pursuant to a writ of peremptory mandamus, and the amount of the recovery herein is the compensation attached to his position from the time of his removal until he was reinstated.

Hiscock, C. J., and Collin and Cuddeback, JJ., dissenting.Charles H. Street, of Huntington, for appellant.

Solon Weit, of New York City, for respondent.

POUND, J.

The question is whether a former volunteer fireman, wrongfully discharged from a position in the civil service, may maintain an action to recover damages against the officer who removed him; his position having meanwhile been filled by the appointment of another.

[1] Exempt volunteer firemen were first protected from removal from positions in the civil service of the various cities and counties, ‘except for cause shown after a hearing had,’ by Laws 1892, c. 577. This statute provided no remedy, but it was held in People ex rel. Coveney v. Kearny, 44 App. Div. 449,61 N. Y. Supp. 41, affirmed 161 N. Y. 648, 57 N. E. 1121, that a veteran fireman wrongfully discharged from a subordinate position was entitled to a common-law writ of mandamus to compel his reinstatement when no question arose between the relator and any actual incumbent of the position.

The statutory provision for a writ of mandamus for the benefit of firemen appears in Laws 1899, c. 370, § 21, now section 22, Civil Service Law. The effect of this amendment was merely to extend the remedy by mandamus to cases where the position had been filled by the appointment of another. People ex rel. Mesick v. Scannell, 63 App. Div. 243, 246, 247,71 N. Y. Supp. 383. But mandamus was essentially a remedy for reinstatement and reinstatement is not a complete remedy.

[2] The act of defendant in removing plaintiff without a hearing was ministerial. Nuttall v. Simis, 31 App. Div. 503,52 N. Y. Supp. 308. Defendant is, therefore, also liable in damages to plaintiff by reason of his misfeasance. Hover v. Barkhoof, 44 N. Y. 113;Bryant v. Town of Randolph, 133 N. Y. 70, 30 N. E. 657;Beardslee v. Dolge, 143 N. Y. 160, 38 N. E. 205,42 Am. St. Rep. 707.

[3] A public office or position is not property in the sense in which that term is generally used, but it is idle to say that one who is wrongfullyremoved from a position in the civil service does not sustain an injury. He is deprived of a right. Nichols v. MacLean, 101 N. Y. 526, 533,5 N. E. 347, 54 Am. Rep. 730. In the ‘great case’ of Ashby v. White (1703) 2 Ld. Raym, 938, 950, 3 Ld. Raym. 323, 1 Smith L. C. (11th Ed.) 240, the House of Lords, approving the dissenting opinion of the famous Sir John Holt, C. J., below, held that an action lies in behalf of any person having a right to vote against election officers who refused to receive his vote, because he has been deprived of a right and where there is a right there is a remedy. Willy v. Mulledy, 78 N. Y. 310, 314,34 Am. Rep. 536. The loss is the amount of salary of which plaintiff has been deprived by defendant's wrongful act.

[4] If plaintiff had so elected, he might have, with proper parties and allegations, had damages awarded to him in the mandamus...