#### Jerry Sullivan, Plaintiff, *v.*The City of New York, Defendant.

(Supreme Court, New York Trial Term,

December, 1900.)

Veteran — When he cannot recover salary for the time of his alleged unlawful discharge.

A veteran, employed by a municipal corporation, absented himself in January, 1896, from his work because of illness, notified his department thereof, his name was soon dropped from the payrolls in accord*315anee with a rule of the department and, when he applied for work in April, 1896, he was not then, nor since, reinstated. He had taken no proceedings whatever to enforce reinstatement, so far as appeared.

Held, that assuming his discharge to be unlawful, he could not recover wages for the period of three years and seven months intervening since his discharge, and during which time he had rendered no services to the municipal corporation.

Action by plaintiff, a veteran of the Civil war, to recover agreed compensation for services rendered, on the theory of wrongful discharge.

Dennis O’Sullivan and George F. Langbein, for plaintiff.

John Whalen, Corporation Counsel, and John F. O’Brien, for defendant.

McAdam, J.

In the early part of January, 1896, the plaintiff, a laborer employed by the park department at a compensation of one dollar and seventy-six cents per day, absented himself from work on account of illness. He thereafter notified the officers of the department of his sickness, and on or about April 24, 1896, reported for work to Mr. Parsons, the superintendent of the department; but the plaintiff was not reinstated; his name, in accordance with a rule of the department, had been dropped from the pay-roll during the week ending January 11, 1896, and he has not since that time been in the employ of the city.

The action is to recover $2,142.95, being the amount of three years and seven months wages, with interest, on the theory that the plaintiff, a veteran of the War of the Kebellion, could not be discharged except for incompetency and conduct inconsistent with his position (Laws of 1894, chap. 716), and, as he was not discharged for these causes, he remained an employee of the defendant, and the wages are an incident of the employment.

Conceding the plaintiff’s contention, that the statute cited made his position equivalent to that of the holder of an office, his remedy was by mandamus for reinstatement and not by action for wages. Hagan v. City of Brooklyn, 126 N. Y. 643. In the case cited the court said: “ The rule deducible from an examination of the various cases on the subject in this state, is to the effect that a public officer, unlawfully removed from office to which another person is appointed, *316and who acquiesces in such removal and has not, by certiorari or, otherwise, obtained a reversal of the order removing him, or a reinstatement in the vacated term by the board having authority to make it, cannot recover from the corporation the compensation incident to the office, accruing during the-period in which he performed no service. Nichols v. MacLean, 101 N. Y. 526; McVeany v. Mayor, 80 id. 190; Dolan v. Mayor, 68 id. 274; Fitzsimmons v. City of Brooklyn, 102 id. 536. In Van Valkenburgh v. Mayor, 49 App. Div. 210, the court said: “Were the question simply one as to the legality of the removal, we should be inclined to agree with the plaintiff, but it does not follow therefrom that the plaintiff is entitled to sue for and recover his salary for the period he remained out of office, performed no services, and during which the services were performed by another who was paid therefor by' the city. * * * The question, therefore, for us to determine is whether one who was illegally removed and kept out of office, who has taken no steps to obtain a review or a reinstatement, and who performs no services, but whose duties during the period sued for were performed by another who was paid therefor, can recover salary for the period mentioned. The authorities are against such a proposition.” And a judgment for defendant was" affirmed. See, also, Quintard v. City of New York, 51 App. Div. 233.

This case is clearly distinguishable from that of O’Hara v. City of New York, 33 Misc. Rep. 53. There the employee was not discharged; the defendant acquiesced in his absence; his name was kept on the pay-roll; no action was taken by the defendant indicating that his services were ended, and the construction of later statutes was involved.

There must be judgment for defendant.

Judgment for defendant.