(concurring)
It seems to me that we should not reason out that this case is against the plaintiff even on the false theory on which it was tried.On the contrary, that theory being false, we should so declare, and thus dispose of the case.by pursuing a straight path, instead of following the devious one into which the plaintiff led the court below; We should stay out of it entirely.
Section 10 of the charter of the city of New York (as amended by chap. 436 of the Laws of 1902) empowers the board of estimate and apportionment to fix the salaries in any department or burean on the recommendation of the head thereof. Acting thereunder the said- board passed a resolution readjusting and fixing the scale of salaries in the department of finance. The plaintiff’s salary as clerk was thereby reduced from $1,800 to $1,500 a year.
The trial judge made a conclusion of law that such reduction of salary “ was in legal effect ” a removal of the plaintiff from his place; and from this premise followed - the other conclusion that the removal was "illegal because the .plaintiff was not given the trial he was entitled to before he could be removed, he being a veteran fireman (city charter § 127), and -also because he was not given an opportunity to explain before being removed (id. § 1543).
But the plaintiff was not removed as matter of fact; He was *472left in his place, and hap continued there doing the very same duties .as formerly. All that was done was to reduce his salary. We would have come to an extraordinary pass if the board of estimate and apportionment could riot exercise the power expressly given to it to fix the salaries on the recommendation of the heads of departments, without- having the courts decide that the legal' effect of every red action, in the process'of fixing salaries was a removal of the person affected from his place. . There is no foundation whatever to support such a theory. The said board has the power to reduce as, well as-.increase salaries, to readjust the scale of salaries in any department, on the recommendation. of the head thereof, - and the courts have no right-to hamper it in the exercise thereof.
To reverse the plaintiff’s, judgment on the ground that he brought the action prematurely, i. e., before first getting himself reinstated in . his office by a writ , of mandamus, when in fact, he 'has never been out of his office, and therefore cannot be, allowed such a writ, would be only misleading him. .
Judgment reversed and new trial granted, costs- to abide the event.