Nuttall v. Simis , 47 N.Y.S. 1097 ( 1897 )

Gaynor, J.

By chapter 119 of the Laws of 1886, as amended by chapter 577 of the Laws of 1892, no'honorably discharged-soldier, sailor or marine, who “ served as such in the Union army or navy during the war of the rebellion, or the Mexican war, and who shall not have served in the Confederate army or navy,” who holds “ a position by appointment in any city or county of this state, receiving a salary from such city or county,” shall be removed except for cause shown after a hearing had. This in so many words relates only to salaried positions, and it has twice been held not to apply to persons - employed by the day for wages. (Meyers v. Mayor, 69 Hun, 291; Matter of Wagner, 7 App. Div. 203). If the adjudication in the mandamus proceeding against the corporate board, by which the plaintiff was restored to Ms place, necessarily embraced tMs question, nevertheless it is not binding in this action of tort against these commissioners individually. But in addition to such interpretation of' the statute, I had in mind . in dismissing the complaint other legal principles wMch seemed applicable. The dismissal of the plaintiff by the defendants involved a determination by them of the question of law whether his case came under tMs statute, granting that he was a veteran of the Mnd described and limited therein; and also of the question of fact whether he was such-a veteran. The duty of so determimng was quasi judicial, and for its performance the defendants cannot be held responsible in damages, even though they were intentionally, or even maliciously, guilty of misfeasance therein. Weaver v. Devendorf, 3 Den. 121. Quasi judicial functions lie between those wMch are judicial and those wMch are ministerial, arid the boundary lines between these different zones are sometimes indistinct. But they seem to me visible enough here. Even in the case of bids for contracts,' “ ascertaining whether plaintiff was the lowest bidder,” without regard to whether "he is a responsible bidder, is said to be quasi judicial (East River Gas L. Co. v. Donnelly, 93 N. Y. 557), and the same is the case with assessors in assessing persons or property exempt from taxation, providing they are not without jurisdiction to act in the premises at all (Vail v. Owen, 19 Barb. 22; Brown v. Smith, 24 id. 419; Bell v. Pierce, 48 id. 51; Id., 51 N. Y. 12; Barhyte v. Shepherd, 35 id. 238; Parish v. Golden, id. 462; Throop on Pub. Officers, §§ 541, 738).

Without so deciding, I suggest another rule which may stand in the plaintiff’s way. It is true that since the conflict between the cases of Adsit v. Brady, 4 Hill, 630, and Garlinghouse v. Jacobs, 29 N. Y. 297 was settled, the law has been that a public officer is liable in damages for any injury caused directly by his nonfeasance or misfeasance alike, to an individual in his person or property. ' (Hover v. Barkhoof, 44 N. Y. 113; Bennett v. Whitney, 94 id. 302; Bryant v. Town of Randolph, 133 id. 70). But such liability se'ems to be confined to direct injury to “ person or estate ” caused by the tort. (East River Gas L. Co. v. Donnelly, 93 N. Y. 561). It is doubtful if this case come under that head. Was .the .plaintiff -damaged in his estate by the. tort alleged? He dost'his place by it; but he had no contract for the place, nor is .this'.an'.action for breach .of contract. An'official who refuses to -give the- advertising matter of his office to a newspaper which is - entitled to have it by statute, and to be paid for publishing it (or who, on the same principle, takes it away from such newspaper), and wrongfully gives it to another newspaper instead, is not liable ■to an action for damages therefor. (Strong v. Campbell, 11 Barb. 135; People ex rel. Francis v. Common Council, 78 N. Y. 33). Why does not the same principle apply.in the case of a refusal to employ or of a dismissal by a public officer of one entitled to preference of employment under him in the public service?

The motion for a new trial' is denied.

Motion denied.