42 N.Y.S. 1 | N.Y. App. Div. | 1896
The relator, who is an honorably discharged Union soldier, was appointed as a painter in the department of parks on December 12, 1889, but not for a definite term, and continued in its employment until the accident herein referred to. On
■ “At the time he became injured, as aforesaid, he sent to the foreman in said, department, under whom he served and received orders, due notice thereof, and also notified said foreman, William Hand, that he would be unable to be at work as usual. This notification, made on the following day, namely, Monday, 30th April, 1894, was conveyed by said foreman to the further attention of the department, as said Michael Reynolds was informed and believes. That, at the date of his said injuries, the work that was performed in said department of the nature of petitioner’s was sufficient to need the employment of about twelve painters besides the petitioner, and the necessity for the services of such painters for such work was evident from the fact that many were continued until a recent date, and up to the time that he placed the protection of his rights in the hands of his present attorney. That, in thus curtailing the employment of or transferring to other mechanic lists the names of such painters, a lack of good faith has been evinced by said department. That he is able and willing to render faithful and competent service in his said position and employment, has so performed his duties thereof, and was never dismissed therefrom or suspended except in manner as aforestafed, and never for cause after a hearing had. That said commissioner well knew petitioner was and is a veteran soldier, claiming and having claimed preference in employment over other persons not possessing veteran privileges, and who, at the time of the refusal'of his demand for restoration to his position, were retained as painters in said department, and given preference over him, to wit, Jeremiah Morris, William Hand, William Goodhue, and George Slane. Said Slane was employed as a painter, was put to work as such, and worked with said Michael Reynolds as such, up to the time of his sickness, as aforesaid, in April, 1894. That two of said painters are still retained, one of whom is not a Union soldier, sailor, or marine of the late Civil War.”
These allegations were denied by the appellant in his return to the writ. Thereupon there was a trial at the circuit, and the jury were instructed to answer two questions:
“(1) Was the relator so injured as to disable him from performing the duties and services incident to his employment, and did he inform the respondent of the same within a reasonable time? (2) Did the relator voluntarily abandon his. employment by the city?”
The first question was answered in the affirmative, and the second in the negative, and thereupon a peremptory writ was issued, as hereinbefore stated, pursuant to chapter 716, Laws 1894, which, in substance, provides that honorably discharged soldiers and sailors shall be preferred for appointment and employment in all public departments of the cities of the state, and shall be removed only
It was not sufficient, we think, to entitle the relator to keep his position, to send word merely to the appellant that he had been injured. He should have notified the commissioner of his intention to return to his work when he should recover from his injury. But nothing of this character was done. The more serious difficulty, however, in the way of the relator’s reinstatement, we think, is that it does not appear that there was any work for him to do when he applied for employment, in the month of June. It is not even alleged in the petition that there was work for him to do. The allegation is that, at the date of his said injuries, the work in the department was such as to require 12 painters, besides the relator. But it was alleged that some of the employés had been discharged for lack of work after the accident to the relator, and that, by such curtailment of employment, there was a lack of good faith evinced by the department. Just what was intended by the last allegation is not apparent, unless it had reference to the retention by the department, in its employment, of one George Slane, who, it was alleged by the relator, was not a Union soldier. Slane, however, was called as a witness by the relator, and it did not appear that he was not a. veteran, or that he was not as much entitled to be retained in the employment of the department as the relator. Undoubtedly, the commissioner had the right to reduce his force of workmen whenever, in his judgment, the public interest demanded that course; and the preference in employment which is given to veteran soldiers by the statute of the state does not preclude their discharge when made in good faith and for lack of work for them to do. It is not claimed that any person has been appointed in the relator’s place, and it was, we think, therefore incumbent for him to show that at the time of his application for reinstatement, in the month of June, there was need of his services in the department, and work which was required to be done, and which he could do. As there was no proof of these facts, we think he failed to make out a case entitling him to be reinstated; and the orders appealed from should be reversed, with costs, and the proceeding dismissed. All concur, except HATCH, J., who concurs on the last ground stated in the opinion, and BARTLETT, J., who does not vote.
