153 Misc. 502 | N.Y. Sup. Ct. | 1934
Originally the application was for a peremptory order of mandamus. On the. argument proponent readily conceded that in view of the existence of controverted facts no such relief was legally possible. The motion is, therefore, submitted and received as an application for an alternative order. As the question here involved is of vital importance not only to plaintiff, but to many others in a similarly unfortunate condition, meticulous consideration has been given to it, not only to observe the letter of the law but especially to invoke and obey the spirit thereof. All agree that this seemingly financially impregnable city has been compelled to abdicate its position of imperviousness to conditions and admit the necessity to retrench and practice strict economy. No quarrel can be had with the endeavor of those intrusted with the city’s affairs to have it live within its means. As the sensible business man avoids disaster by eliminating everything possible and paring to the bone, so must the city, which is but a composite reflection of its citizens’ prosperity, do likewise or else take the consequences, but with this difference —• while the individual may fairly hire and fire, as it is colloquially expressed, constrained only by contract, the city
The petitioner became a duly appointed civil service employee in 1922 as a nurse’s assistant in the health department. On May first of this year she received the distressing announcement that after May fifteenth her services would be dispensed with and that her name would be returned to the municipal civil service commission with the request that it be placed on the preferred list. Bowing to the inevitable she relinquished her job without demur until she believed her suspension due to motives in violation of section 16 of chapter 178 of the Laws of 1934. Her suspicion aroused, she investigated and came to the conclusion that persons were taken from the emergency relief rolls to do the work formerly done by her. Convinced that her suspension was perfidious; that the resolution of the board of estimate abolishing her position was not in good faith; that her work was necessary to the safe and orderly conduct of the health department and that others could have been better spared, she appeals to the court for redress.
On these facts, although every material assertion is denied by the defendants, it is deemed essential to grant an order for an alternative mandamus. Regardless of who will succeed on the trial and mindful of the decision of this court in Matter of Grosso (N. Y. L. J. June 22, 1934), this procedure should be followed, for the petitioner, as all others, should be self-assured that the courts will not tolerate invasion of even the simplest right of the most self-retiring and timid. It may well be that a full and fair hearing will establish that the petitioner, like thousands of others, is a victim of circumstances created by the abnormal conditions of the unusual emer
Motion granted. Settle order.
