Van Valkenburgh v. Mayor of New York

Barrett, J. (concurring):

I concur in the result arrived, at by Justice O’Brien, but upon somewhat different grounds. The position of property clerk was, in my judgment, a regular clerkship within the meaning of section 48 of the Consolidation Act (Laws of 1882, chap. 410). What the plaintiff claims is, that under the pretense of abolishing that position, the commissioners unlawfully discharged him. The utmost that can result from the defendant’s admission of. the truth of this claim is, that the effect of what the commissioners did was to remove the plaintiff without information as to the cause of such removal and without an opportunity of explanation. But granting this,' he cannot recover against the city in this action. It is true that his position was not a public or statutory office (People ex rel. Murphy v. Board of Education, 3 Hun, 177, 179 ; Swartwood v. Walbridge, 57 Hun, 33), the title to which it was necessary for him to establish before bringing an action for the salary incident thereto. He was a mere employee of the commissioners. His tenure of employment was indefinite, and his salary was subject to their pleasure. The rule, however, which requires reinstatement before salary again attaches is equally applicable to such an employee. The latter has his remedy by certiorari or mandamus (as the one or the other of these writs may be applicable to the peculiar circumstances of his case), the same as the distinctively public or statutory officer. Under circumstances somewhat similar to those here disclosed, it has been held that a mandamus would lie for reinstatement. (People ex rel. Corrigan v. Mayor, 149 N. Y. 215; People ex rel. Hart v. La Grange, *2137 App. Div. 311.) It has also heen repeatedly held that such an employee — that is, one who has not heen employed for a definite period — cannot recover from the city for services unless they have been actually rendered. (Terhune v. Mayor, 88 N. Y. 247; Higgins v. Mayor, 131 id. 128; Cook v. Mayor, 9 Misc. Rep. 338; affd., 150 N. Y. 578; Gore v. The Mayor, 30 N. Y. Supp. 405.) The reason is, that from the time of discharge down to the time of reinstatement the contract of employment is no longer running. He may have an action for the damages sustained by the unlawful discharge. But the city is not liable in such an action where the commissioners guilty of the unlawful discharge are not then acting directly as its agents. The act of such commissioners in discharging their employee is in the line of their governmental, and not of their strictly corporate, functions. The city is liable for the salary or compensation of the employee while he is actually rendering service to it under the employment. That contract obligation ceases as soon as the discharge defacto is effected. After that the employee can claim nothing from the city as upon an existent contract, express or implied. He must then stand upon the unlawful discharge, and for this wrong the city is not liable, as it was not committed by its agents acting within the scope of their corporate agency.

Whatever remedy the plaintiff here may have against the commissioners, he has none against the city; none for the wrong, for the reason that the municipality has not committed the wrong; none for compensation under the contract, for the reason that no service was rendered thereunder.

The judgment should, therefore, be affirmed.

Judgment affirmed, with costs.