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Misc.]

Supreme Court, May, 1921.

would be quite consonant with the spirit of section 22 that the previous incumbent should not be restored to his original position, but should continue to enjoy only the preference awarded to him by the statute, which frequently indeed would already have become effective by having placed him in another position.

On the other hand, to come to the statute of 1919, which we are considering, the only provision for continuance in the civil service of the World War veteran is that he shall be "restored to his position." Manifestly, the legislature must have had in mind that the positions of the many employees who went to the World War were not superfluous, and that during their absence such positions would have to be filled either by temporary incumbents or by such temporary reorganization and consolidation as would enable their duties to be performed by other employees. The sole test prescribed for the right of the World War veteran to restoration is that his former position must exist at the time of his discharge from the army. This we find to be the case in the present proceeding. It represents, I think, the precise contingency contemplated by the statute. Otherwise I am afraid that we should be confronted with the paradox that the statute would require the restoration of the former incumbent to his position only if it had not been abolished or had not been temporarily filled during his absence; that is to say, only in case it was in fact unnecessary in every event.

Although respondent suggests in his return that the change in the organization of the department during the absence of relator was not due to that absence, but was carried out for purposes of economy, the result was manifestly the same. It is not-indeed, cannot be claimed that the position was abolished before relator left for the war, namely, August, 1918,

Supreme Court, May, 1921.

[Vol. 115.

since, according to the return, the change was recommended to become effective only in 1919.

The learned corporation counsel says in his brief: "It surely cannot be contemplated that a person who has served for years in the department of water supply, gas and electricity shall be removed in order to make room for Mr. Machen's reinstatement." Without adverting to the fact that relator is disclosed by the petition to have been in the employ of the same department since 1905, and that, therefore, the argumentum ad hominem loses force when directed at him, I see no moral reason for discriminating against an employee who placed his life and limb at his country's service in favor of one who-although with perfect remained at propriety and perhaps of necessity

home. The fact stands out clearly that, after the shifting of various engineers of the same general standing as relator and after the intradepartmental transfer of" office designations" and "titles," the position of relator as he left it to enter the war was intact upon his return and he should, conformably to the statute, be restored thereto.

From another point of view also I reach the same conclusion. While it is claimed that relator's position has been abolished, whether formally or informally, and that during at least a year it did not exist as relator had occupied it, but was to a certain extent consolidated with another similar position in the department, and respondent further claims in his affidavit that "the number of positions of the same designation as relator's was reduced from 41 in 1918 to 37 in 1919, and again reduced to 32 in 1920," he concedes that "in 1921 certain transit men who were in the department were made assistant engineers by change of title, with very slight increases in pay." It is difficult to understand how, if the positions had

Misc.]

Supreme Court, May, 1921.

been abolished, transit or any other men could be made assistant engineers. Indeed, the analogy is almost perfect to People ex rel. Davison v. Williams, 213 N. Y. 130, in which it is said at page 134: “The fact is that simultaneously with the relator's removal two men were demoted from other positions and reclassified as laborers in order to keep them in the department. At the same time that the commissioner reduced the positions, he increased them. He had the right to reduce the number of laborers, and in so doing suspend the relator from duty; but if he increased the number at the same moment that he reduced it, his duty was to transfer the relator to the position thereby created."

I think that in this aspect we may regard section 22-b as that" plain, imperious legislative mandate " referred to in Matter of Breckenridge, supra, at page 109, as one of which the court must compel the execution."

I am referred by respondent to the case of People ex rel. Steers v. Delaney, N. Y. L. J., March 9, 1920, as authority for the refusal of the writ now prayed for. Without adverting to other considerations covered by the opinion of the learned judge in that case, it suffices to quote from his recital of the facts "that no one has been employed to do the work which the relator formerly performed," to distinguish it in this vital point from the case at bar.

Respondent urges, also, that relator" resigned" his position on August second and that his resignation was regularly reported to the municipal civil service commission and by the commission duly entered upon its records. Apart from some unimportant details. which are recited in the return, this claim is based upon relator's letter of August 2, 1918, reading: "I beg to advise you that on account of having received

[Vol. 115.

Supreme Court, May, 1921.

notice of my appointment as a major in the ordnance reserve corps it will be necessary for me to sever my connection with the water department. I therefore request that you accept my resignation."

Although no formal reply to this letter is set out, it appears to be conceded that relator was in some informal manner advised that his resignation had been accepted as of August thirty-first as was customary. I am not concerned with whether this be called a resignation or a withdrawal or defined by any other form of. words. It surely would have been surprising if relator had on the date of the acceptance of his enlistment in the military forces of the United States dropped his work and walked out of his office without notifying his superiors. It was a corollary of his voluntary enlistment in the military service of his country that he should apprise the head of his department of his withdrawal in some appropriate manner, and this he did. Any other course would have been inexcusable. But the statute under which he seeks reinstatement, and which was not passed until nearly a year after his "resignation," is not limited in its application to persons who severed their relations with the local civil service in any particular manner. Relator's course, as described by respondent, identifies him as one who in the very words of the statute "has left his position for the purpose of entering the federal military service, and by reason thereof has been unable to perform the duties of his position in said civil service."

In my opinion, the case of relator falls within both the letter and spirit of section 22-b, and he is therefore entitled to the peremptory writ prayed for.

Application granted.

Misc.]

Supreme Court, May, 1921.

GASTON JAILLET, Plaintiff, v. JOSEPH CASHMAN, as Treasurer of Dow, JONES & COMPANY, Defendant.

(Supreme Court, New York Special Term, May, 1921.)

Associations

unincorporated- ticker service when no action lies against an association for damages occasioned by its incorrect report of decision of United States Supreme Court on taxable status of stock dividends - libel.

While everyone is under moral obligation to say nothing that is not true, the law does not attempt to impose liability for a violation of that duty, unless it constitutes a breach of contract or trust or amounts to a deceit, libel or slander.

The relation of an unincorporated association engaged in the business of supplying its subscribers with current news by a ticker service to the public, is the same as that of a publisher of a newspaper, and its duties and obligations are to be measured by the same standard.

No action lies against such an association for damages occasioned by its incorrect report of the decision of the United States Supreme Court on the taxable status of stock dividends, by one who seeing such report in his broker's office, sold stocks at a loss, and his complaint must be dismissed.

MOTION on demurrer.

Podell, Ansorge & Podell (David L. Podell, of counsel), for plaintiff.

Emmett, Marvin & Roosevelt (Langdon P. Marvin, of counsel), for defendant.

TIERNEY, J. The defendant is the treasurer of Dow, Jones & Company, an unincorporated association engaged in the business of supplying its subscribers with items of current news by what is known as a ticker service. On March 8, 1920, it incorrectly

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