169 Misc. 389 | N.Y. Sup. Ct. | 1938
This is an application under article 78 of the Civil Practice Act, section 1283 et seq., by an honorably-discharged veteran of the World war occupying the .position of laborer in the park department, to review a fine imposed against him.
On May 17, 1938, the park engineer notified the petitioner in writing that a deduction of fifty-five dollars, representing ten days’ pay at five dollars and fifty cents per day, would be made from his salary. This deduction was based upon the petitioner’s dereliction of duty and the use of intoxicating liquor.
On the adjourned date the petitioner’s counsel objected to the jurisdiction of the trial officer on the ground that the fine previously imposed and deducted from his pay under protest had not been remitted. This objection was overruled and the petitioner was adjudged guilty and the deduction stated was made from his wages. In addition to the claimed lack of jurisdiction, it is urged that the hearing was improperly conducted and that the general superintendent should have referred the disposition of the charges to the park commissioner.
Subdivision 1 of section 22 of the Civil Service Law provides, inter alia, that no veteran of the World war “ shall be removed * * * except for incompetency or misconduct shown after a hearing upon due notice upon stated charges, and with the right to such employee or appointee to a review by certiorari.” (Italics mine.) The subdivision does not confer upon World war veterans the right to a hearing as a condition precedent to the imposition of a fine. Although a reduction in salary may be regarded as a removal within the meaning of subdivision 1, if the reduction brings the salary below a proper living wage and reduces it to an unreasonable amount (People ex rel. Tyng v. Prendergast, 164 N. Y. Supp. 1042, 1049; affd., 178 App. Div. 895; affd., 221 N. Y. 659; Bogacki v. Zalemski, 143 Misc. 140, 148; affd., 238 App. Div. 764), a fine of ten days’ pay, in my opinion, is not tantamount to a removal within the meaning of subdivision 1 of section 22. It follows that the petitioner was not entitled to a hearing under subdivision 1 by reason of his status as an honorably-discharged veteran of the World war. Had the Legislature intended to confer upon veterans the right to a hearing as a condition precedent to the imposition of a fine, it could easily have so provided in the statute.
Nor is the petitioner entitled to a hearing under subdivision 2 of section 22 of the Civil Service Law. The said subdivision applies only to persons in the competitive class. The petitioner was and is employed as a laborer in the department of parks and as such is in the non-competitive class, removable without a hearing and even for political reasons. (Matter of Merriweather v. Roberts, 268 N. Y. 12; Matter of Daly v. Goldwater, 163 Misc. 502.)
Petitioner calls attention to the fact that subdivision 1 of section 22 of the Civil Service Law provides that “ hearings upon charges pursuant to this subdivision shall be held by the officer or body
The application to review the imposition of a fine upon the petitioner is denied. Settle order.