I cannot concur in holding the defendant liable to pay an employee for services that were never performed, because of a violation of law by a commissioner of one of the departments of the city. It appeared that the plaintiff was duly appointed “ cleaner,” and was subsequently detailed as a watchman in the county court house in the city of New York, now in the bordugh of Manhattan, in said city, at a salary of fourteen dollars per week, which was paid to this plaintiff by said defendant for work, labor and services he did and performed as such cleaner and watchman until the 24tli day of October, 1898, when lie was removed and discharged as such cleaner by the commissioner of ^public buildings, lighting and supplies, without any charges being made or preferred against him, and without any notice or hearing or trial upon any charge against him, although the plaintiff was an honorably discharged veteran soldier of the war of the Rebellion, and such removal and discharge were in violation of chapter 821 of the Laws of 1896, amending chapter 312 of the Laws of 1884; that the plaintiff “ has ever .since and always has been ready and willing to perform the said work, labor and services as cleaner or watchman, and has tendered his services as such to said commissioner and said defendant, and has demanded his reinstatement as such, but the same was refused until the 28th day of December, 1898, when said commissioner and defendant reinstated this plaintiff to his said position of cleaner and revoked said removal; ” that “ by reason of the matters aforesaid and the premises, this plaintiff has suffered damages in the loss of his salary during the time of the continuance of said unjust and unlawful removal, to wit, from October 24, 1898, to December 28, 1898, amounting to the sum of one hundred and thirty-three dollars; ” and for this sum of $133, with interest thereon, the plaintiff has obtained judgment against the defendant, the city of New York.
*524It thus'appears that' the position occupied by the plaintiff was that of a subordinate employee, and that he held no public office. By section 456 of the charter (Laws of 1897, chap. 378), the'commissioner at the head of a department, or a deputy commissioner in charge of a branch office of a department, subject to the approval of the head of his department, has power to appoint such clerks and subordinates as may in his judgment be necessary, and may fix and regulate their salaries within the limit of the appropriation duly made therefor. Thus, the head of" the department of public buildings, lighting and supplies had the power to appoint and remove his subordinates*, and had the power to appoint and remove a person employed in his department. During the time for which this plaintiff has recovered his compensation that would have been due to him had he performed any services for the city,'he performed no such services, having been discharged. Such discharge was prohibited by law, but under the established rule of law there was no liability imposed upon the city or upon the public to pay the plaintiff for services which he did not perform. This precise question was presented to the Court of Appeals in the case of Higgins v. Mayor, etc., of New York (131 N. Y. 130), where the plaintiff, an honorably discharged Union soldier, was removed from the position of laborer at the dog pound, which removal was illegal and to which position he was reinstated. The court, in considering the effect of the. Veteran Act upon such a discharge, says : “ The effect of this legislation was to impose a personal duty upon the public officials to carry out the provisions of the law, and to subject them to penal consequences if those provisions were disregarded or violated. The appointee acquiring office or employment tinder this-law, of course, enters into certain relations with the municipality and gains the legal right to be paid by it for the services he renders;; but it is not easy to understand how the resultant relations of the employe can be deemed to rest upon, or to be regulated by, any contract by the.city. •* * *. There is no intention deducible from the act that the municipality is to be made liable for any violation of its provisions.. The very existence of the provision in the law for the case of a failure by an official to faithfully' comply with its terms would seem to effectually negative that idea. • To uphold the right to recover from the municipality, for a time when the *525plaintiff was not serving it, and when another was rendering the particular services, would certainly amount to visiting upon the city the consequences of the violation by its officer of a law, which was meant to regulate and control his conduct in making appointments, as it would likewise be in violation of the usual, legal rule of liability in such cases. * * * With respect to any effect which
this act of 1887 has upon the question, I think it may be said, generally, that the only obligation under which the city comes, to an appointee under its provisions is to pay him his compensation for the services which he fenders while in office and employed. Its only relations are to the.appointee as such, and it is not in the least degree legally concerned with him, or with his grievance, if he has lost his office or employment by the wrongful or illegal act of the person possessing the power of appointment, The municipality must pay for the services rendered to it, on principles of liability quite unconnected with .this act. Where no services are rendered, it is not conceivable that an obligation is imposed by law upon the city with respect to compensation.” As this is the latest statement by the Court of Appeals of the law upon this question, I think it is controlling. The cases cited by Mr. Justice Rumsey all relatero the right to the salaiy attached to an office and are distinguished in the Higgins Case (supra). It is claimed by the plaintiff, however, that a different rule- should be applied in consequence of the amendment of the Veteran Act (Chap. ■821, Laws of 1896). That act provided that “ Ho person holding a position by appointment or employment in the state of Hew York, •or of the several cities, counties, towns or villages thereof, and receiving a salary or per diem pay from the state, dr from any of the several cities, counties, towns or villages thereof, who is an honorably discharged soldier, sailor or marine, having served as such in the Union army or navy during the war of the rebellion, * * * shall be removed from such position or employment except for incompetency or misconduct shown, after a hearing upon due notice, upon the charge made, and with the right to such employe or appointee to a review by writ of certiorari; * * * and such honorably discharged soldier, sailor or marine shall have a right of action therefor in any court of competent jurisdiction for damages, and also a remedy by mandamus for righting the wrong.” • It is .claimed by *526the plaintiff that this act gives to a person illegally removed a right of action for damages against the State or municipality, which, but, for the removal, would be under an obligation to pay him for services which he would have performed but for such rémoval. There is nothing, however, in the act which would indicate such an intention on the part of the Legislature. The act itself imposes no duty upon the municipality or the State. It provides that honorably discharged Union soldiers* shall be preferred for appointment. • It. imposes a duty upon, the appointing officer to grant such preferences and then provides that such honorably discharged. Union soldiers shall not be removed from a position to which they have been appointed, except for incompetency or misconduct after a hearing. It thus imposes a duty, not upon the State or municipality, but upon the officer in whom is vested the power of removal, and the act of such appointing officer is subject, to review by writ of certiorari. A refusal to grant a preference, or a removal in'violation of the provisions of the act, is made a misdemeanor, but it is the appointing officer, or the.officer having the power of removal, who is guilty of the misdemeanor, if the act is violated. A right of action for damages is then given to the person injured by the violation of the act, but it would seem to follow that action for damages is against the person who has violated the act and caused the damage, and not against the State or municipality; and-tlie person given the protection of the statute has also a remedy by mandamus to right the wrong; but, again, it is clear that this remedy is against the officer-having the power of removal, and not against the city or municipality. Thus, the whole scope of the statute would seem to indicate an intention on the part of the Legislature tó impose a duty upon the appointing officer and provide a proper penalty to be imposed upon the officer vested with such power for a violation of the statute. In this case the municipal corporation of the city of New York has been guilty of no breach of duty. It is the commissioner of buildings who violated the statute in the performance of the duties imposed upon him by law. The municipality had no power to control his action; no power to prevent him making the removal; no power to compel the reinstatement of . the plaintiff to the position from which the commissioner removed him. I think it would require a clear indication of an intention to visit an injury caused *527by a violation of such a statute by the head of the department upon the municipality, and there would seem to be no reason why the taxpayers of the city of New York should be compelled to pay a sum of money for services not rendered to the city because a public-officer in whom the Legislature had vested certain specific duties had failed to perform those duties as required by law.
I think, therefore, that the plaintiff failed to show any cause of action against the defendant.
Judgment and order affirmed, with costs.