(dissenting). The salient facts in this case appear in the record substantially without dispute; and no bad faith is charged. The petitioner was a World war veteran in the civil service of the city of Binghamton, entitled to the protection of sections 21, 22 and 23 of the Civil Service Law; and his rights are to be determined as of January 15, 1932. On that day he held a position as clerk in the bureau of water. The city had adopted the city-manager plan of government, and the council passed an ordinance for the abolishment of that office, to be effective January *60815, 1932; and the city manager accordingly, by notice in writing, dismissed petitioner on the latter day. On the day of dismissal the position of assistant engineer existed and was vacant, and the petitioner was competent to fill it, and accordingly was entitled to be transferred thereto. This mandamus proceeding to reinstate the petitioner was begun on February 13, 1932. On March 7, 1932, the council abolished by ordinance the office of assistant engineer; and on the same day conferred on the city manager, the regular appointing power, the authority to determine when a vacancy in any city position, to be held by an employee, should be filled. There is no proof in the record that there was a vacancy in any position in the city service, other than that of assistant engineer, to which the petitioner might have been transferred.
The city appears to have been in the throes of transition between its old charter government and that under the city-manager plan, and the people had determined to abolish needless offices, to reduce city affairs to a more business-like basis, to avoid waste, and to practice economy. In the effort to accomplish these ends and in treading this new ground, it is hardly to be expected that laymen or even lawyers will accurately judge in each instance the powers granted, and those withheld, and the correct practice to be pursued. Prolonged litigation in this proceeding has resulted from this disagreement, in the effort to determine plaintiff’s rights, during which nearly two years have elapsed, and the case is now in this court the second time (236 App. Div. 206).
It may be conceded that the petitioner could have been transferred on January 15, 1932, to the position of assistant engineer, and that it was a violation of petitioner’s rights to refuse that transfer. But the real question in this case is not, however, whether the petitioner shall be put back into a position as clerk in the bureau of water, and then transferred to that of assistant engineer, but rather whether the city of Binghamton shall be called upon to pay petitioner salary for approximately two years, amounting to nearly $5,000, instead of for a period of two months, amounting to about $400, because both of the offices in 'question were legally abolished by the city on March 7,1932, and before the order appealed from was made. The making of an order on July 14, 1933, to reinstate and to transfer the petitioner in accordance with his demand amounted to the merest fiction, because there was no office to which he could be restored. And assuming, without conceding, that it was proper to submit to the jury the two questions, (1) of the existence of an office, and (2) of a vacancy therein on January 15, 1932 (both facts appearing as matters of official public record), the petitioner had no legal right to be retained in office when the *609office which he had held, or to which he might have been transferred, had been abolished. This conclusion has been stated by the courts repeatedly and in vigorous language. (Matter of Breckenridge, 160 N. Y. 103; People ex rel. Chappel v. Lindenthal, 173 id. 524; Matter of Stutzbach v. Coler, 168 id. 416; Tonkin v. Leary, 234 App. Div. 448; affd., 259 N. Y. 510.)
The petitioner’s right to damages against a city official, in this proceeding, has its origin in section 23 of the Civil Service Law. But that section provides only for the payment of lost compensation from the day of the unlawful removal to the date of restoration, “ which he would have been entitled by law to have received * * * but for such unlawful removal.” If he had not been removed in the way complained of, his employment would have ceased in two months, when the office was abolished. It is not convincing to say that the Legislature intended to set up in this statute a mere form or fiction, and thereby fasten on the city an unreasonable burden. It was the beneficent purpose of the statute to protect veterans against unfair discrimination and the attendant loss, not to penalize the city for its effort at the provident management of its own affairs.
It is urged that restoration is a condition precedent to the right to have damages assessed in the final order, under section 23 of the Civil Service Law. That may be true when that course is reasonable and that end attainable; but here the Legislature has not provided for a case where the position was abolished lawfully and in good faith pending the proceeding to review. But recovery of damages actually suffered is not thereby precluded. The injured party has his action at law for the damages suffered by reason of unlawful removal from a civil service position, even when good motives prompt the unwarranted removal. (McGraw v. Gresser, 226 N. Y. 57.)
Section 93 of the General Construction Law is cited in support of petitioner’s contention that he may be paid salary until reinstated under an order. That section, in so far as it may bear on rights involved here, saves only those rights which had accrued on January 15, 1932, and gave no right to a continuance of the civil service position in question. Doubtless it continued his right to the salary as long as the position existed, but not beyond that point. (Breckenridge, Chappel, Stutzbach and Tonkin Cases, supra.) To accede to the contention of the petitioner here, one or the other of two conclusions is inescapable: Either the mistaken view of the city manager and the unlawful removal that resulted stripped the city of power lawfully and in good faith to abolish a needless and expensive office, *610or thereby the petitioner’s right to the salary in question was enlarged far beyond the time when the office ceased to exist, and to the unforeseen end of this litigation. In other words, the commencement of this proceeding had the effect of curtailing the powers of the city, or enlarging the rights which the petitioner had on January 15, 1932.
Concededly, the petitioner’s present rights are those of salary only, while the main objective of section 23 of the Civil Service Law is to regain possession of a civil service position. This latter objective is no longer attainable, and the right to salary may be enforced in an action. This proceeding lost its main purpose by the action of the city taken lawfully and in good faith, somewhat as Would be the case in an action to recover the possession of property that was destroyed without fault before judgment. The final order should be reversed, and the petition dismissed.
Order and judgment affirmed, with costs.