#### George W. Cottam, Respondent, *v.*The City of New York, Appellant.

(Supreme Court, Appellate Term,

November, 1911.)

Civil service — Preference of veterans and firemen: Abolishment of office or discharge of unnecessary employee: Temporary employment.

Under the Civil Service Law a veteran volunteer fireman has a right to a hearing before removal, but, upon the completion of the work he was employed to do, he may be dismissed.

In the absence of express statutory direction, his chief is not required to discharge other competent employees to make room for said veteran when the funds available for his wages have been exhausted.

Where the wages of city laborers are payable, per *diem,*they' may not recover of the city for a wrongful discharge or lay off.

Appeal by the defendant from a judgment in favor of the plaintiff for $247.50 costs and interest, entered after a trial before the court- without a jury in the Municipal Court of the city of Yew York, borough of Manhattan, sixth district.

Archibald R. Watson (Theodore Connoly, Loyal Leale and Elliot S. Benedict, of counsel), for appellant.

Leo R. Lawlor, for respondent.

Guy, J.

This is an action to recover wages brought by plaintiff, who, after passing a civil service examination as a skilled laborer, was employed as a gardener in the department of parks, borough of the Bronx, Yew York city. Prior to his appointment, plaintiff had been a veteran volunteer fireman in the city of Yonkers.

On January 14, 1910, he was nominally discharged *“*for lack of work,” but was in reality only suspended, as his name was placed on the preferred eligible civil service list. People ex rel. Vineing v. Hayes, 135 App. Div. 19; Shane v. City of New York, id. 218. A number of 'other skilled laborers *68of the plaintiff’s “ gang ” were suspended at the same time for the same cause; others were retained; some of the retained gardeners were veteran soldiers, hut some were not.

On April 5 or 6, 191.0, the plaintiff was offered the position of gardener in the borough of Manhattan at seventy-five dollars per month, a larger wage than his per diem of two dollars and fifty cents, less Sundays and stormy days; on April 7, 1910, he declined the position.

On April 25, 1910, he was reinstated; and he now sues for his wages between his discharge or suspension and his reinstatement. .

1 While a veteran volunteer fireman has a right to a hearing before removal, we find no statute commanding his chief, in the event of the funds available for the payment of his wages being exhausted or of the work being finished, ‘ to create a vacancy for his benefit by discharging a better qualified or more faithful employee.

In People ex rel. Chappel v. Lindenthal, 173 N. Y. 524, it was held that, when a veteran volunteer fireman and other employees were discharged for lack of work, the fireman was not entitled to' have some more efficient employee removed to make a vacancy for him. The court say (p. 529) : “ His claim * * * would result, either in imposing upon the municipality the burden of the expense of maintaining the relator in his position, when the work for which he had been employed had ceased; or in removing some employe elsewhere, perhaps better, or equally, qualified and faithful, to make a vacancy for the relator. We will not impute to the legislature the intention to sanction such unnecessary injustice; or the absurdity of intending to saddle an unnecessary employe upon the city.”

In the absence of express statutory direction, a public officer is not required to discharge other competent employees • to make room for a veteran, when the funds available for the payment of his wages have been exhausted. People ex rel. Forest v. Williams, 140 App. Div. 723, 726; Matter of Gilfillan, 127 id. 846, 850; affd., on opinion below, 193 N. Y. 655.

A veteran volunteer fireman, though entitled to a hearing *69before removal, may be dismissed upon the completion of the work, upon which he was appointed as inspector. Dunne v. City of New York, 116 App. Div. 331-334.

The cases holding that military and naval veterans have a preference over, nonveterans, not only as to appointment but also as to employment, to the extent of requiring the latter to be first discharged to create vacancies fon the former’s benefit in'the event of lack, of work or of funds, have not yet been extended to volunteer firemen.

Laborers whose wages are payable per diem are not entitled to recover from the city for a wrongful discharge or lay off. Walsh v. City of New York, 143 App. Div. 150; O’Donnell v. City of New York, 128 id. 186; Higgins v. Mayor, 131 N. Y. 128, 131—133; Birdseye’s Con. Laws, vol. 1, p. 672, note to § 23 of Civil Service Law.

The judgment should be reversed, with costs, and the complaint dismissed, with costs.

Seabuby and Cohalau, JJ., concur.

Judgment reversed.