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Subsequent to this decision, chapter 821, laws of 1896, became a law, amending chapter 716, laws of 1894, and providing for a hearing upon notice, and the court of appeals in the case of the People ex rel. Hannan v. Board of Health, 153 N. Y., 513, in a very learned and exhaustive opinion upon the effect and purpose of chapter 821, said: "The object of the act was to protect those lawfully appointed or employed from removal without a chance to be heard. The object of the amendment of 1896 was to remedy a defect that was pointed out in, People ex rel. Fonda v. Morton (148 N. Y., 156), where it was held that the amendment of 1891, making veteran incumbents irremovable except for incompetency and conduct inconsistent with the position held' did not require notice or an opportunity to be heard before the power of removal was exercised. We think there was no intention to legalize invalid appointments, or to give the right to be heard as to the validity of the appointment when made, but simply to guard the veteran soldier against removal from a position lawfully held by him, until he has had notice of an accusation against him and the right to make a defense."

In removing an appointee or employee in the civil service by reason of the position having been abolished, or the services of the employee not being necessary, the question is one of good faith. (People ex. rel. Nutall v. Simis et al., 18 app. div., 199, and cases therein cited.)

I am of the opinion that the veteran holding a place under the government of the city of New York, under appointment in the civil service of that city cannot be removed therefrom except for incompetency or conduct inconsistent with the position held; in which case he should have notice and an opportunity to be heard, unless the position held be in good faith abolished or his services are not needed by reason of lack of work or some valid cause in this line; in which case notice and hearing are not necessary. The fact that an office or position filled by a veteran has been abolished solely for the purpose of removing the appointee, after

which the position is reestablished, is not sufficient to deprive the veteran of appointment thereto, as the abolition of the office may justly be regarded as not an act of good faith. The law is plain upon the question of a veteran's employment; and I am satisfied that no sophistries or technicalities intended to evade either the letter or spirit thereof will receive the approval of our courts.

Rspectfully

T. E. HANCOCK
Attorney General

Decisions of the Supreme Court and Court of

Appeals-1898

THE PEOPLE OF THE STATE OF NEW YORK ex rel. MICHAEL BRODERICK, Appellant, v. LEVI P. MORTON AND OTHERS, TRUSTEES OF PUBLIC BUILDINGS, AND FREDERICK EASTON, SUPERINTENDENT OF PUBLIC BUILDINGS, Respondents.

(24 App. Div. 563.)

DISCHARGE OF A VETERAN EMPLOYED AS AN ELEVATOR MAN IN THE CAPITOL WHILE HIS ELEVATOR IS BEING TEMPORARILY REPAIRED.-When a writ of mandamus may be addressed to the Governor-a demand therein for relief to which the relator is not entitled-against whom damages can be restored.

A veteran entitled to a preference in public employment (laws of 1894, chapter 716), who has been assigned as a laborer to the duty of running an elevator in the capitol, at Albany, the running of which has been temporarily suspended for about a month in order to have repairs made upon it, cannot be removed by the superintendent of public buildings with the approval of the trustees under section 4 of chapter 227 of the laws of 1893, while at the same time other laborers who are not veterans are retained.

The fact that the Governor is a member of the board of trustees in question does not prevent, in proceedings to procure the reinstatement of the laborer, the issue to the members of the board of a writ of alternative mandamus, the Governor being named in the writ as an individual, as the writ does not require him to do any act in his character as Governor, and does not attempt to interfere with the executive department of the state; nor will the court in any manner consider the question whether the writ may be enforced, as it is not presumed that state officials will refuse to obey the law.

The fact that the relator asks to be reinstated in the position of elevator man when he is only entitled to be restored to the position of a laborer is not a reason for denying him the latter relief.

Although chapter 716 of the laws of 1894 gives to a veteran wrongfully discharged, in addition to the remedy by a writ of mandamus, a right of action" for damages as for an act wrongfully done," the court should not award him, under section 2088 of the code of civil procedure, damages against public officials who come into office after he had been discharged by their predecessors. The damages are recoverable against the officers by whom the wrongful act was done.

Appeal by the relator, Michael Broderick, from a final order of the Supreme Court, made at the Albany special term and entered in the office of the clerk of the county of Albany on the

16th day of September, 1897, confirming the report of a referee and dismissing an alternative writ of mandamus.

M. D. Nolan, for the appellant.

G. D. B. Hasbrouck, deputy attorney general, for the respondents.

Parker, P. J.: The following facts clearly appear from the record in this case:

The relator was employed as an "orderly," so-called, in the maintenance department of the public buildings at Albany. He was an honorably discharged Union sailor of the war of the rebellion. About a month after such employment he was assigned to the duty of running one of the senate elevators in the capitol building, and continued as such work until October 2, 1895. For such service he was paid the sum of seventy-five dollars per month. The superintendent of public buildings, subject to the approval of the trustees, appoints and suspends or removes all persons employed in such department, and also prepares rules and regulations for their government. (Laws of 1893, chap. 227, §4.) It seems that persons employed in such department by the superintendent are designated on the pay-rolls as orderlies, watchmen, cleaners and laborers. Those running elevators are included within the list of laborers.

"Some of the duties of laborers are to run elevators, some are cleaning the park, shoveling snow, etc." Their pay is regulated by the work they do. Whether the orderlies are employed to perform any specifically defined duties does not appear. But, inasmuch as the relator was so soon after employment put to the performance of a laborer's work, and continued in it for so long a time, he must be deemed to have been an employee of that class when he was discharged.

On the 2d of October, 1895, the relator was discharged. The referee finds that he was then dropped from the pay-rolls, but not discharged. The facts however which he finds, and which are undisputed, clearly show that he was then discharged, and he has never since been reemployed. At the time he was so dis

charged there were many men employed performing the work of laborers who were not discharged soldiers or sailors, and some of them were then running other elevators in the building.

No charges of "incompetency and conduct inconsistent with the position held" were ever made against the relator. The reason given for his discharge was that the elevator which he was then running was about to be stopped for extensive repairs, and that his services were therefore not needed. Soon after the discharge repairs were begun upon that elevator and for some weeks it was not used, but it was put into operation again within four to six weeks after such repairs were begun upon it. On or about February 24, 1896, the relator began these proceedings by mandamus, to require the trustees and superintendent of public buildings, to restore him to "his former position of running an elevator, *** and to reimburse him with a sum equivalent to what his salary would have amounted to from the date of his dismissal to the date of his reinstatement."

By chapter 716, laws of 1894, it is provided that "in every public department and upon all public works," of this state "honorably discharged Union soldiers and sailors shall be preferred for appointment and employment," etc., "and in all cases the person having the power of employment or appointment, unless the statute provides for a definite term, shall have the power of removal only for incompetency and conduct inconsistent with the position held by the employee or appointee.”

The relator claims that his removal was in violation of the provisions of the act above cited.

The defendants make several answers to this claim.

First. That because the running of the elevator upon which he was employed was necessarily stopped, his services had become. unnecessary, and that therefore it was the duty of the defendants to no longer employ him. And they attempt to bring this case within the authority of Phillips v. Mayor, etc. (88 N. Y. 246); Langdon v. Mayor (92 id. 427); People ex rel. Wardrop v. Adams (51 Hun, 583), and People ex rel. Corrigan v. Mayor (149 N. Y. 225).