108 N.Y.S. 626 | N.Y. App. Div. | 1908
Lead Opinion
The relator applied for and obtained an order directing the issuance of a peremptory writ of mandamus requiring the appellants
Moreover, if the failure to give personal notice on the fifteenth be held to have made the relator’s appointment permanent, I think it must follow that he could be removed on formal charges after a hearing for acts done before that time, for which his services would have been terminated but for the impossibility of giving the notice. (People ex rel. McMorrow v. Roosevelt, 23 App. Div. 533.) I do not discuss this question at length, however, because it seems to me clear that the service of the notice on the eighteenth was a reason
The order should be reversed and the motion denied, without prejudice, however, to the relator’s right to apply, for an alternative Writ if he shall be so advised.
Woodward and Rich, JJ., concurred; Hooker, J., read for affirmance, with whom Jenks, J., concurred in'the result reached. •
Dissenting Opinion
The appellants are commissioners composing the board of health of the city of Hew York and the department of health of that city. On September 2, 1908, the relator took a competitive examination for the position of food inspector in the department of .health, and passed successfully. On Juné 5, 1906, he was notified by the'secretary of the municipal civil service commission of the city of Hew York that his name had been certified to the department of health for the position of inspector of foods, and oh the 16th of July, 1906, he was duly appointed, an inspector of foods (milk) on probation. Rule 11 of the civil service commission,, relating to the appointment of persons in the civil service of the city, provides as follows: “ The person selected shall be duly notified by the appointing officei", and, upon accepting and reporting’for duty, shall receive from such officer a certificate of appointment for a probationary period of three months;' * - * *1 If his conduct or capacity on probation be unsatisfactory to the appointing officer the probationer shall be notified in writing that at the end of such period he shall, for that reason, not be retained; his retention in the service otherwise shall be' equivalent to perznanent appointment.” It is conceded that the provisions of this rule are applicable to the relator’s appointment. It is also provided by rule 16 that no person holding a position in the service of .the city shall be removed from such position, except in the manner prescribed by its charter and the Civil Service Law.
It is to be observed, then, that the probationary period of the relator expired with the 15th day of October, 1906, which was the end of the three znonths’ tizne. Ho notice in writing was served upon
The return shows that Thomas Darlington, one of the commissioners, received a communication on October 8, 1906, from the chief sanitary inspector in the department, recommending that the relator be notified that his services were no longer required. This letter was accompanied by other documents which originated in the department of health, the purport of which was that the relator should be notified that he would not be retained and that his connection with the department would cease with the expiration of the probationary period. First among these papers attached ¡to the report of the. chief sanitary inspector was the report of two inspectors of foods, dated August 24, 1906, in-which certain facts were stated which, if true, reflected upon the industry and conscientiousness of the relator. Next attached was the report of another inspector of foods, dated October eighth. Evidently the recommendation of the chief sanitary inspector was not all that the excess of administrative detail in the department required; for on October 9, 1906, the papers having been forwarded to the assistant sanitary superintendent, he indorsed a recommendation that the services of the relator be dispensed with at the end of the probationary period which “will terminate October 15.” The papers were then evidently forwarded by the assistant sanitary superintendent to his chief, the sanitary superintendent, who, on October 12,1906, marked them “approved and respectfully forwarded to the board.” It appears that these papers finally did get to the board, but how soon after the twelfth of October the papers do not show. The next step in this complicated proceeding, the simple object of which was the notification of the relator that he would not be retained beyond his probationary period, is a letter written to the relator, dated at the office of the secretary of the department of health on October
Every presumption is to be indulged and there is no legal- evidence to the contrary that the department knew as early as the eighth of' October or could readily have ascertained the exact whereabouts of the relator, so that the written notification of. his separation from the service could have been served personally upon him before the expiration of the probationary period-, and there ■ seems to be no valid excuse why such notification was not given to him in time. The language of the rule is plain and needs no interpretation. It provides that if a probationer is unsatisfactory he shall be- notified in writing that he will not be retained, but that his retention in the service otherwise shall be equivalent to a permanent appointment. The civil service laws and the rules enacted to give them practical effect are as well for the benefit and protection of employees as of municipalities; and under the plain reading of this rule, the relator’s ■ right to a permanent appointment, because of his failure to receive notification during his probationary period-that he would not be retained, should not be denied him, especially in a case of this character, where, although the intent
Another phase of the history of this case should be considered. Although the relator was advised on October 18, 1906, that his services were no longer required in the department, yet on October 19, 1906, the chief sanitary inspector preferred charges against him, which contained three charges with a total of fifteen specifications, all of which, however, save one, related to his conduct during his probationary period, and dohbtless were the grounds which actuated the inspectors of foods, the chief sanitary inspector, the assistant sanitary superintendent,"the sanitary superintendent and the commissioners of the department of health, to reach the determination that the relator should not be retained in the service after the expiration of his probationary. period. The one exception is specification 6 under charge 1, in which it is charged that on October 18, 1906, the relator did not report at the office of the department of health until ten-fifty o’clock a. m., although he had arrived in the city of Mew York early in the morning. These charges of the chief sanitary inspector were forwarded to the assistant sanitary superintendent, and on October 22, 1906, were by him “ approved and respectfully forwarded to the Sanitary Superintendent.” It evidently did not take the same length of time for these charges to get through the cumbersome official channels as it took the recommendation during the probationary period; for the sanitary superintendent approved them on October 22, 1906, the same day they had been forwarded to him by the assistant sanitary superintendent. They were signed, attested and served upon the relator upon October 23, 1906, and a hearing thereon set for October 24, 1906, at eleven o’clock in the forenoon. The hearing before the board of health was postponed until October 31, 1906, when the relator took the position that inasmuch as the board had already separated him from the service, it could not then upon these charges separate him again. Whatever may be the merits of that contention, it is enough to say that with the exception of his failure to call at the office of the department before ten-fifty o’clock on the morning of October eighteenth, all the other charges and specifications dealt with conditions which arose during the probationary period, and which could have been
The order should be affirmed.
Jenks, J., concurred in the result reached. •
Order reversed, with ten dollars costs and disbursements, and motion denied, without prejudice, however, to the relator’s right to apply for an alternative writ.