Decisions of the Supreme Court and Court of

Appeals - 1897.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM NUTALL, Respondent, v. ADOLPH SIMIS, JR., AND OTHERS, as Commissioners of Charities and Corrections of the City of Brooklyn Appellants.

Appellate Division, Second Department, June Term, 1897.

(18 App. Div. 199.)

A CITY EMPLOyee Discharged FROM MOTIVES OF ECONOMY-NOT REINSTATED.-A tinsmith, employed by the commissioners of charities and corrections of a city, who is discharged by them and his position abolished simply from motives of economy, the work which he formerly did being subsequently performed by the prisoners of a county penitentiary, effecting a saving to the city of several hundred dollars, is not entitled to be restored to his position. Appeal by the defendants, Adolph Simis, Jr., and others, as commissioners of charities and corrections of the city of Brooklyn, from an order of the Supreme Court, made at the Kings county trial term, upon the trial of issues arising on the return of an alternative writ of mandamus, entered in the office of the clerk of the county of Kings, on the 30th day of January, 1897, directing that a peremptory writ of mandamus issue to the defendants, commanding them to restore the relator to his position as, a tinsmith in the department under their charge, and also from an order entered in said clerk's office on the 30th day of January, 1897, denying the defendant's motion for a new trial made upon the minutes. John A. Quintard, for the appellants.

Horace Graves, for the respondent.

Per Curiam: The only question which arises upon this appeal relates to the good faith of the appellants. Did they act in good faith when, on July 29, 1896, they adopted the resolution abolishing the position of tinsmith in the department and declaring that after the ensuing first of August, all work formerly performed by the discharged tinsmiths should be done by prisoners in the Kings County Penitentiary? If they thus abolished the relator's position from motives of economy, he has no grievance which the

courts are called upon to redress. (People ex rel. Corrigan v. The Mayor, 149 N. Y. 215, 225; People ex rel. McCanna v. Commissioners, 1 App. Div. 3; People ex rel. Reynolds v. Squier, 10 id. 416; People ex rel. Traphagen v. King, 13 id. 400.)

We are of the opinion that the evidence before us in this record is not sufficinet to maintain the finding of the jury to the effect that the commissioners of charities and corrections acted in bad faith in this matter. It appears that since the relator was discharged, all the tinsmith's work done in the department has been performed by inmates of the public institutions, whose labor costs the city nothing, with the exception of, a little work, representing an expenditure of between seventeen and eighteen dollars, which was merely incidental to contracts for roofing and putting up sky lights. At the time of the trial, the saving which had already been effected amounted to several hundreds of dollars, so that the change was clearly in the direction of economy. The suggestion in the relator's testimony that Commissioner Simis on one occasion manifested personal hostility toward him is denied by Mr. Simis; and so far as the other commissioners are concerned, who constituted the majority, there is not a scintilla of evidence that they entertained toward him the slightest ill-will. The presumption is that these public officers did their duty, and on the proof before the jury that presumption should have prevailed.

The order appealed from must be reversed and a new trial must be granted upon the issues under the alternative writ of mandamus.

All concurred, except Goodrich, P. J., not sitting.

Order appealed from reversed and new trial granted upon the issues under alternative writ of mandamus, costs to abide the event.

WILLIAM NUTALL, Plaintiff, c. ADOLPH SIMIS, et al., Defendants. (Supreme Court, Kings Trial Term, December, 1897.)

(21 Misc. Rep. 19.)

1. VETERANS.-A tinsmith, paid by the day, may be removed arbitrarily.

The provisions of the Laws of 1886, chapter 119, as amended by chapter 577 of the Laws of 1892. providing that a veteran, who holds a salaried position, shall not be removed from it except for cause shown, and after a hearing had, do not apply to a tinsmith, a veteran appointed by a board of commissioners of charities and corrections and paid at a per diem rate.

2. COUNTY COMMISSIONERS.-Not liable in tort for removing such a veteran. Semble, that where such commissioners again remove such an employee, after his prior removal, and subsequent reinstatement by a writ of peremptory mandamus, they are not liable to him as for a tort, as they exercise quasi-judicial functions in determining whether or not he is a veteran, and their discharge of him from a position, for which he had no contract, is not a direct injury to his person nor to his estate.

Motion for a new trial, the complaint having been dismissed as not stating facts sufficient to constitute a cause of action. It alleged that the plaintiff was appointed as a tinsmith by the Board of Commissioners of Charities and Corrections of Kings county, a corporate board composed of defendants as commis sioners, at the compensation of $2.75 a day; that there was permanent need for the employment of a tinsmith under the said board; that the plaintiff was an honorably discharged soldier of the late war of the rebellion, and, therefore irremovable from such employment except for cause after a hearing; that the defendants removed him without cause or hearing on January 13, 1894, and employed others in his stead. That he was restored to his place on April 10, 1896, by a peremptory writ of mandamus against the said board, issued upon a final order entered after a trial of issues raised by a return to an alternative writ which he had obtained. Damages for such removal are prayed for.

Horace Graves, for plaintiff.

John A. Quintard, for defendants.

GAYNOR, J.: By chapter 119 of the Laws of 1886, as amended by chapter 577 of the Laws of 1892, no honorably discharged soldier, sailor or marine, who "served as such in the Union army or navy during the war of the rebellion, or the Mexican war, and who shall not have served in the Confederate army or navy," who holds "a position by appointment in any city or county of this state, receiving a salary from such city or county," shall be removed except for cause shown after a hearing had. This in

so many words relates only to salaried positions, and it has twice been held not to apply to persons employed by the day for wages. (Meyers v. Mayor, 69 Hun, 291; Matter of Wagner, 7 App. Div., 203). If the adjudication in the mandamus proceeding against the corporate board, by which the plaintiff was restored to his place, necessarily embraced this question, nevertheless it is not binding in this action of tort against the commissioners individually. But in addition to such interpretation of the statute, I had in mind in dismissing the complaint other legal principles which seemed applicable. The dismissal of the plaintiff by the defendants involved a determination by them of the question of law whether his case came under this statute, granting that he was a veteran of the kind described and limited therein; and also of the question of fact whether he was such a veteran. The duty of so determining was quasi-judicial, and for its performance the defendants cannot be held responsible in damages, even though they were intentionally, or even maliciously, guilty of misfeasance therein. (Weaver v. Devendorf, 3 Den., 121). Quasijudicial functions lie between those which are judicial and those which are ministerial, and the boundary lines between these different zones are sometimes indistinct. But they seem to me visible enough here. Even in the case of bids for contracts, "ascertaining whether plaintiff was the lowest bidder," without regard to whether he is a responsible bidder, is said to be quasijudicial (East River Gas L. Co., v. Donnelly, 93 N. Y., 577), and the same is the case with assessors in assessing persons or property exempt from taxation, providing they are not without jurisdiction to act in the premises at all (Vail v. Owen, 19 Barb., 22; Brown v. Smith, 24 id., 419; Bell v. Pierce, 48 id., 51; Id., 51 N. Y., 12; Barhyte v. Shepherd, 35 id., 238; Parish v. Golden, id., 462; Throop on Pub. Officers, sections 541, 738).

Without so deciding, I suggest another rule which may stand in the plaintiff's way. It is true that since the conflict between the cases of Adsit V. Brady, 4 Hill, 630, and Garlinghouse v. Jacobs, 29 N. Y., 297, was settled, the law has been that a public officer is liable in damages for any injury caused directly by his

nonfeasance or misfeasance alike, to an individual in his person or property. (Hover v. Barkhoof, 44 N. Y., 113; Bennett v. Whitney, 94 id., 302; Bryant v. Town of Randolph, 133 id. 70). But such liability seems to be confined to direct injury to "person or estate" caused by the tort. (East River Gas L. Co. v. Donnelly, 93 N. Y. 561.) It is doubtful if this case comes under that head. Was the plaintiff damaged in his estate by the tort alleged? He lost his place by it; but he had no contract for the place, nor is this an action for breach of contract. An official who refuses to give the advertising matter of his office to a newspaper which is entitled to have it by statute, and to be paid for publishing it (or who, on the same principle, takes it away from such newspaper), and wrongfully gives it to another newspaper instead, is not liable to an action for damages therefor. (Strong v. Campbell, 11 Barb., 135; People ex rel. Francis v. Common Council, 78 N. Y., 33). Why does not the same principle apply in the case of refusal to employ or of a dismissal by a public officer of one entitled to preference of employment under him in the public service?

The motion for a new trial is denied.
Motion denied.

Supreme Court-Kings County Special Term.

SIMEON B. CHITTENDEN AND OTHERS, against FREDERICK W.
WURSTER, AS MAYOR OF BROOKLYN, AND OTHERS.

November, 1896; memorandum by Justice Keogh.
The questions presented for decision in this case are:

FIRSTLY —Is it practicable to ascertain by competitive examination the merit and fitness of a person to be appointed to the position filled by each of the defendants?

SECONDLY. Is the action of the Mayor of Brooklyn in placing each of such positions filled by the several defendants in the non-competitive class subject to review by this court-and if so THIRDLY.-Is this the proper form of action in which to review the action of the Mayor!

I decide as follows:

First. That the oral testimony and documentary evidence in this case prove very clearly that it is practicable to ascertain by competitive examination the merit and fitness of a person to