101 N.Y.S. 678 | N.Y. App. Div. | 1906
The plaintiff is a veteran volunteer fireman of the village-of Greenbush in this State, and as such entitled to a certain preference in appointment and employment under chapter 184 of the Laws of 1898 (amdg. Laws of 1888, chap. 119, § 1) and under section 21 of the Civil Service Law (Laws'of 1899, chap..370).
In July, 1896, he passed the necessary civil service examination and was placed upon the eligible list for inspector of masonry in the city of New York. On October 3, 1896, he received an appointment from the department of parks as inspector of masonry, and was assigned to work on the speedway, where he remained employed until July 15, 1898, when he was notified that “on account of the completion of work” his services would no longer be required. In his complaint he alleges that he was thereby “ unjustly and unlawfully dismissed and discharged.” On August 1/1898, he was reinstated and assigned to work, and did work and was paid for his services UP til September 9, 1898, when he was again discharged “ on account
In effect, his contention is that upon Jiis first j appointment as inspector of masonry in the park department he became an officer of the department, entitled to receive the salary attached to that position, whether there was'any wqrk for him to dp, and which he did do, or not, and that the mere fact that the ¡department was engaged in no work for which liis.services were required furnished no ground for his discharge. The defendant,, on the contrary, insists that plaintiff’s relation to the city is merely' the contractual one of an employee, and that, as has been held ini a multitude of cases, the services of such an employee may be dispensed with at at any time, either for lack of work or for.' lack, of funds, without the necessity of charges and a hearing. (Eokerson v. City of New Norlc, ,80 App. Div. 1,2.) The very statutes unde:” which plaintiff claims a preference plainly contemplate - that a beneficiary .under them would not be retained in Iris. office or position if there he-no work for him to do, as they provide that-“in cities of. the -first class, if the position so held by any such * * *'' volunteer fireman shall become unnecessary, or be abolished for,reasons of economy or otherwise,” the beneficiary of tile acts, shall be
Our conclusion is that plaintiff held no office tjo which.a--salary-was- attached as • an incident, but was an employee who could be rightfully dismissed whenever, for lack of work, liis; services became-unnecessary. ' , '
It follows that the judgment should be affirmed-!, with costs:
Patterson,' Ingraham, McLaughlin and Houghton, JJ., concurred. • ;
Judgment affirmed, with costs. Order filed: Í