I am unable to concur for it seems to me that there is not only a moral obligation to pay the incumbent who has been wrongfully removed, but the situation is such that if private individuals were involved, there would also be a legal obligation by way of damages for the breach. (Howard v. Daly, 61 N.Y. 362, 371;Milage v. Woodward, 186 N.Y. 252, 257.) Such legal obligation would be implicit in the finding of the court that the incumbent has been ousted contrary to law. The State or subdivision thereof would be liable had not the court absolved the public authorities from liability to pay over again to the wrongfully ousted claimant. (Matter of Barmonde v. Kaplan, 266 N.Y. 214.) The Legislature to its credit has now held the public authorities to as high a standard of morality and justice as demanded of the private individual. This is as it should be. The expressed intention and purpose of the Legislature being to give the statute a retroactive application (Jacobus v. Colgate,217 N.Y. 235, 240; Hallenbach v. Born, 238 N.Y. 34, 38), and a claim existing founded in equity and justice (Town of Guilford v. Board of Supervisors, 13 N.Y. 143, 149), the statute is constitutional. Contrary statements to be found in Stemmler v.Mayor (179 N.Y. 473) are dicta.
The respondent was wrongfully removed, rightfully reinstated, has not been reimbursed, and had no opportunity to receive any other compensation during the period he was out of office.
I vote to affirm.
CRANE, Ch. J., HUBBS, CROUCH and LOUGHRAN, JJ., concur with LEHMAN, J.; FINCH, J., dissents in opinion, in which O'BRIEN, J., concurs.
Ordered accordingly. *Page 379