The National tribune., 1891-06-04
AN IMPORTANT DECISION.
The Champions % ycterans' Rights In New York
Win Decisive Victory In the Courts.

lhc champions ot NetefanN' NlEhtS IN new lotA
Win Decisive Victory In the Courts.
EDITOR NATIONAL TRIBUNE: Inclosed
| please find copy Of opinion by Supreme Court
Of New York. Ii is the most important de-
cision that has been rendered in this State
under the Veterans Act of 1857. / obtained
most important decision in the case OF Sulli-
van VS.. Gilroy, Commissioner of Public Works,
and by that decision stopped the wholesale re-
m0yal OF the veterans, his being the FIRST aud
test case under Chapter 46i. Laws Of lsS7,
foil text Of which you will find in the inclosed
/ opinion.
Under the decision in the Sullivan case tho
Relief Committee Of the Memorial Committee
Of the city Of New York was instrumental in
reinstatiug some % veterans who had been dis
charged after Jan. ], 1859.
The present decision goes further than any
decision i have been able TO get from the
courts, I'm that il holds il 10 be a criminal Oiense
for the appointing power to remove a veteran
simply ior the SAKE Of putting another person
! in his place, and the fact OF doing cOnsti-
] tutcs crime.
would respectfully request that the opinion
! be published I'm full on account OF IFS impor-
tauce. A similar bill was introduced in Con-
grcss year ago last December by Congress
man from New York city, which ! had the
! pleasure of drafting, and banded the same 10
| said Congressman. He has lately informed me
] tnst he was unable 10 get u reported by the
! committee 10 which il was referred. That Con-
gress should pass such law, aud not make the
] States bear the burden of being solely the
wards of the veterans admits OF 10 discussion.
They should have the same right for prefer
ence TO work i'm the vineyards Of the Nation AS
| IN that Of the States and If they had that
| preference We would have less talk about pen
| sions and less for the pousiOn agents 10 do. IL
| will he observed that under the Federal laws
no preference is given for employment or APP
/ poHtment 10 the vcteTans.-J0HNJEROLo
Counsel 10 the Relief Committee GAR, 229
Broadway New York.
supreme Court, First Department, General
Term
Charles II. Van Brunt, Presiding Justice.
Abraham Lawrence, Jus,iees
Charles Daniels,
Daniel A Higgins, Respondent.
against
Mayor Aldermen aud Coinmonalty OF
the City OF New York Appellants.
Motion by defendant for a new tial on eKcep.
tons taken at Circuit and ordered 10 dc first heard
/ AT General Term
Walker HartwelI. for the defendant
JerolomRn x AETowsnlth, for the plaintiff.
! Daniels J.
The plaintiff was employed ne a laborer nj the
dOgpound. Ia the city of New York that employ
mcnt was terminated 10y the act and authority Of
Mayor Grant on tine 7th ~ March, 1852 aud another
! person was employed 10 aud aiicrwarl did reader
| the same service.
/ The p,HiuuI in October following commenced
Proceeding by HlauuHiuUs ~ secure hs rcstoTa-
ton 10 hls pJsit Oh, on iIe ground tIat he
honnra1ly ly-aischarEe3 Onion -odor Of the late
war and that resulted ia his rcstorat On in Fcbru-
nry 1850. Alter that ho brought this action to
cover his wages during the Interval and "A verdict
was directed in his favor, and TO that an exception
was taken 10y the defendant Whether that eNcep-
uOu is well taken Is the important point now To be
decided. On behalf OF the defendant. IL is main
tanned that u is. aud the Of Dolan vs. tie
| Mayor etc. 65 \. Y, 275; McVeany the Mayor
etc, 20 y. Y, 49, aud TeThune vs.. the Mayor etc.
ss \, T., 247, are brought 10 the attention Of the
/ court la support Of this position but they are all
cases OF pubic Officers unlawfully removed having
liked salaries assigned 10y law for the incumbent Of
tlie Office and IL held that payment Of the sala
ries TO the persons actually u Office for the time
was defense against the action OF the gLtful OIL
/ cial for It's subsequent recovery.
But tho plaintiff was not official nor The in
cumbent oi an Office; lac was lAbOTeT only. Aud
when a labOrer or other person may DE employed
by a public OF private corporation. by iudi-
FlGuai, To render personal services aud lac As been
unlaMiully discharged lac II entitled 70 the siipu
lated compensation for his services during the lime
1 lac u necessarily employed, HHd the employment
and payment Of another person hus never been
allowed defense Tor the employer. These
cases have been uniformly held 70 depend upon
the fact whether the discharge without legal
cause, aud when u appears To have beeH 30. then
\ ihe employer has been uniformly held TO be
liable. The case is substantially one uf clutraci
and not OF official selection appointment. That
was tic nature OF lie plalnilH = employment. 10
resulted from his preceding honorable service
Union soldier, and his selection for this employ
/ ment The law then assured hitn preference with
ter 50 Of the laws Of Iss7 BY Us fret section u l.
declared that "ln every public department aud
upon al public works Of the Stale Of New York
and Of The ciucs, towns and villages thereof, AID
/ also ln mons com pCiItlge examinations under Tie
1 ctl service laws rules regulations 81 the
wherever they apply. honorab " discharged Union
soldiers and sailors shall bc preferred for appoint
/ meut aud cmp piOyncut. Age, loss Of limb other
phy rica impairment which does not in fact inca
pacIlaie, shall not be deemed 10 disquaiify them,
provided they possess the business capacity neces-
! saTy 10 discharge tie dulles OF the position in
] gOlyed." Aud by the second section. all officials
| or other persous having power Of appoints tment to
or employment iu the public service sei forth in
the G-t section of this act charged Wit. a faith
Tai compliance with IT. terms, both iH letter and
/ spri, ANA "A failure therein shall he misde.
! meanor.
This Jaw gave the plaintiff a vested rizlll to the
continuation of lis employment over tac person
selected ln Als place io render the service 10
had all thc force aud effect u "a ceRlly made aud
well defined agreement that lac should be retained
Ia the service aud thc violation Of it, provisions
on no weii-dcfncd principle could relieve the de-
ieEdaut from tie duty 10 perform its obligations.
TO violate that obligation has been made "a INSIDE
ucHuOT, aud te commission Of the Oflruse cannot
with any consistency be assigned a legal proiec-
uoH against the payment of The compensation 10
! which TIE plaintiff would, without lt, have been
clearly entitled. The statute was intended To- sc
cure - him this right, and lac cannot be deprived
al % by mere violation Of its iuJuuctiOus, and IL
has been u its effect already considered ia the
case Of Mashburn French 81 Of Eun fCi
. Connor -. Adams % Hun, lsl, and Sullivan vs.
OIiToy, - Hun, 2A5.
The direction Of a verdict for the plaintiff was
right, even though he was discharged from hs nI.
! poyEslt instead of being suspended, he most
! probably The discharge was entirely with.
out right. and could not deprive him Of the cmolu.
nents oi his employment. And a. there are no
/ other exceptions worthy Of consideration, that
/ which has been referred 10 should be oVeTluled
! ana tie plaintiff should have judgment on the yer
| dict win costs.