Opinion
Argued January 9, 1947
Decided February 28, 1947
Appeal from the Supreme Court, Appellate Division, Fourth Department, CHARLES B. SEARS, Off. Ref.
Thomas J. McKenna and W.J. Wetherbee for appellant.
Fred C. Maloney, Corporation Counsel ( Bart J. Shanahan of counsel), for respondents.
Judgment affirmed, without costs; no opinion.
Concur: LOUGHRAN, Ch. J., LEWIS, DESMOND, THACHER and DYE, JJ. Taking no part: CONWAY, J. FULD, J., dissents in the following memorandum: Section 21 of the Civil Service Law, implementing the Constitution (N.Y. Const., art. V, § 6), commands preferences to war veterans in appointment and promotion. Under subdivision 7, denial of the required preference gives the veteran a cause of action for "damages".
Words are flexible and take on meaning from the history and purpose of the legislation. (See Towne v. Eisner, 245 U.S. 418, 425, per HOLMES, J.) Regardless of its limited denotation in a different context and under different circumstances, here, in the light of constitutional and statutory mandate, it is my view that the term "damages" encompasses counsel fees incurred by a veteran in a proceeding to secure the preference guaranteed him. (See Stiles v. Municipal Council of City of Lowell, 233 Mass. 174.) Confirmation for such construction is found in the circumstance that section 23 of the Civil Service Law entitles the nonveteran officer or employee wrongfully removed, not to "damages", as specified in section 21, but to "compensation" lost to him.
The judgment should be reversed, with costs.