O'Neill v. City of New York — 81 Misc. 453

Majority

p. 453

Martin H. O'Neill, Plaintiff, v. The City of New York, Defendant.

(Supreme Court,

Kings Trial Term, June, 1913.)

Headnote

Mandamus — city of New York — suspension from office as chief inspector in bureau of buildings — decision of borough president — misdemeanor.

Where plaintiff was suspended from office as chief inspector in the bureau of buildings in the city of New York “ pending the preparation of charges ” which he was informed would be “submitted at the earliest possible moment,” but despite continuous application therefor they were not furnished until four months after his suspension, and he was not allowed to perform his duties until he was voluntarily “ restored to duty ” by the superintendent of buildings appointed to try the charges, and was never found guilty, said charges, if true, constituting not only a violation of the city charter but a misdemeanor as well, plaintiff is entitled to recover the salary due him, and his reinstatement by mandamus was not a prerequisite to an action therefor.

The decision of the borough president, who had no duty to review the evidence or to reach any decision, or to fine plaintiff in a sum equivalent to the salary due him, was illegal.

Action for reinstatement in office.

John J. Kean, for plaintiff.

Archibald E. Watson, corporation counsel (James D. Bell and Charles J. Drnhan, of counsel), for defendant.

Upon the agreed statement of facts, I. think the plaintiff is entitled to judgment. He was suspended from his office as chief inspector in the bureau of buildings on July 15, 1900, “ pending the preparation of charges,” which charges he was in

p. 454

formed would be “ submitted at the earliest possible moment.” He was paid his full salary for July, but after July thirty-first and until December twenty-second, his salary was withheld. He was not furnished with a copy of the charges against him until November 26, 1909, a lapse of four months, despite continuous application for same. He was not allowed to perform his duties until December 22, 1909. On December twenty-second, he was ‘1 restored to duty. ’ ’ He never was found guilty of the charges preferred against him by any one. The superintendent of buildings, in his notice to plaintiff under date of December twenty-second, does not in any way intimate that he, the superintendent, has adjudged the plaintiff guilty of the charges against him, and the superintendent was the tribunal appointed to determine this question. On the contrary, the superintendent restores the plaintiff to his office and directs him to report for duty at the usual hour. All this is inconsistent with my finding or determination that plaintiff had been in any way derelict in the performance of his duties. The charge made against him, if true, constituted not only a violation of the charter, but was a misdemeanor as well. It was malum per se under section 1533 of the charter. It seems to me that the action of the superintendent in restoring the plaintiff to his office was virtually an acquittal, an exoneration of the plaintiff. It cannot be that the superintendent would restore to duty a man guilty of the acts charged against the plaintiff.

But, it is said, the letter of the superintendent dated December 22, 1900, notifies the plaintiff that the borough president after carefully reviewing the evidence in the case has reached a decision that the plaintiff be fined a sum equivalent to the salary due him. The inevitable answer is that the borough president had no duty to review the evidence, or reach any

p. 455

decision, or to fine the plaintiff. The authority and the duty and the responsibility for all these things are with the superintendent of buildings. The superintendent carefully omits any statement that he has made any finding against the plaintiff, nor is it claimed that he •made any such finding. Nor does the borough president suggest that he has convicted the plaintiff of anything. True the borough president is reported to have decided that plaintiff should be fined — but, fined for what? Surely not because the commissioners of accounts stated back in July that plaintiff had done wrong, but omitted to frame or present charges until November twentieth, and then failed to sustain them. This might warrant fining the commissioners, but what possible ground does it afford for fining the plaintiff?

The learned corporation counsel suggests that plaintiff should have procured reinstatement by mandamus. This is not a prerequisite. The superintendent restored plaintiff to his office voluntarily. And on the argument suggestion was made that the facts may have been suspicious, although not rising to the standard of proof. There is no warrant for the last suggestion. There is no intimation that there was any proof whatever. The reinstatement of the plaintiff negatives this suggestion in the strongest possible way. And “ suspicion ” or charges made without foundation should not be made a basis of fining a man five months’ salary. There is no such procedure laid out in the charter.

Judgment for plaintiff.