#### The People ex rel. Frederick G. Mead, Relator, *v.*William Dalton, Commissioner of Water Supply of the City of New York, Defendant.

(Supreme Court, New York Special Term,

June, 1899.)

New York city — Restoration of illegally removed keeper of the aqueduct — Measure of damages — Mandamus.

A keeper of the aqueduct of the city of New York, entitled to a ' salary of $1,000 per annum, to occupy rent free a house belonging to the city, and allowed $2.50 *per diem*for the use of a horse and wagon required by his duties and furnished by himself, is entitled, upon his restoration by mandamus to his position from which he had been illegally removed, to enjoy the same emoluments; and, for the period of his illegal removal, may recover his *pro rata*salary as well as his . *per diem*allowance for the keep of the horse and wagon, but cannot, in a proceeding of such a nature, recover anything for his loss of the use of the house.

Motion for a peremptory writ of mandamus.

Stickney, Spencer *&*Ordway, for motion.

John Whalen (corporation counsel), opposed.

Scott, J.

The relator, who was a keeper on the aqueduct, appointed after a competitive examination, was illegally removed by the defendant on December 31, 1898. Has compensation or emolument consisted of three items. First, .he was paid a salary of $1,000 per annum. Secondly, he was permitted to occupy, free of rent, a house belonging to the city; and thirdly, he was allowed $2.50 per diem for the keep of a horse and wagon which he was required to use in the performance of his duty. That he is entitled to be restored to his position and salary of $1,000 a year is not disputed, the only question raised being as to whether he is entitled to the use of the house and the cost of keeping the horse and wagon. I cannot escape the conclusion that the right to occupy the house, and the allowance for the keep of the horse and wagon were a substantial part of the relator’s compensation. If the city had not furnished him with a house, he "would have been obliged *668to provide a house or other residence- for himself, and the rent would have had to come out of his $1,000.salary, thus reducing the amount available for other purposes. So also as to the Horse and wagon. He swears that he owned and furnished them, and that they were required for the proper performance of his duties. These statements are not denied by the defendant, and must, therefore, be taken as admitted. If they be true it follows that, in the absence of an allowance from the city, the relator would' have been obliged to pay out of his $1,000 salary the cost of keeping the horse and wagon, thus further reducing the amount available for .other purposes. As' a keeper of the. aqueduct it is not unreasonable to suppose that he ought to live near the scene of his duties, and to enable him to do this the city has permitted him to occupy a'house of the- estimated rental yalue of $50 per month, a value which the defendant does not-question. If the relator were to -be restored to duty merely at his cash salary, he would still be obliged, in .order to perform his duties properly, to rent a house near that portion of the aqueduct'in which he is employed, and also to keep a horse and wagon! This would cost him at the rate fixed by the city, $600 a year for house rent, and $912.50 Tor-keep of the horse and wagon, to meet which he would receive a salary of $1,000 in cash, leaving a deficiency of $512.50 per annum. It may be said that the allowance’for rent and keep of the horse and wagon are excessive. The answer is' that the city fixed their amount by furnishing'a house worth $50 per month, and by fixing the rate of keep of horse and wagon at $2.50. per diem. But even if these allowances were to be cut in two, the relator would, have little left out of his $1,000 cash salary after he had paid house rent and horse keep. The relator is entitled to be-restored to just as good a position as he held when he was illegally removed. He will not be so restored unless he receive not only his cash salary, but also his right to occupy the house, or the equivalent of such right, and the cost of keeping of his horse and. wagon. The.relator is entitled to a peremptory writ of mandamus' restoring him to his position with the salary and allowances heretofore paid him, including.the -right to hold and occupy a suitable house, rent free. He is also entitled to be paid, for the period since the -illegal attempt to remove him, his salary at the rate of $1,000 per annum, and also The sum of $2.50 per diem for the keep of the horse and wagon. As to the rental value of the house, it cannot, I think, be provided for in this proceeding. The relator *669was entitled to occupancy, not to cash, and while he is undoubtedly entitled in some form of proceedings to be indemnified for the loss of the use of the house during the period of his illegal removal, I do not think that this can be effected through a writ of mandamus. Motion for peremptory mandamus granted, with $25 costs.

Motion granted, with $25 costs..