In re Vanderhoof
36 N.Y.S. 833
N.Y. Sup. Ct.
1896
Check Treatment
GAYNOR, J.

Thе petitioner was a clerk in the tax and assessment burеau of the department of finance of the city оf Brooklyn. The comptroller was expressly prohibitеd by statute from removing him except for cause shown аfter a hearing, he being entitled to that_ protectiоn under the veteran statute (Laws 1892, c. 577). On Janu-' ary 26, 1895, the comрtroller informed him that he would not be retained after January 30th. On the latter day the petitioner informed the comptroller by letter that he was a veteran, and therеfore entitled to hold his position. The comptroller on the same day answered him by letter, acknowledging the receipt of his notice of “intention to insist” on his rights under thе veteran statute, and concluding as follows: “I now notify you that on and after this date your ‍‌‌‌‌‌‌‌​​‌​​‌​​‌‌​‌‌‌‌​‌​‌‌​​​‌​​‌‌​‌​​​‌​‌​​‌​​‍position will be abolished.” It is shown that whereas only seven, or at most eight, clerks wеre employed in the said bureau prior to and at thе time of the petitioner’s discharge, the comptroller now employs ten clerks there, and it is insisted that the vеteran law may not be nullified or defied by a mere prеtense of abolishing places. This is undoubtedly so, but the questiоn of whether the comptroller’s act in nominally abоlishing the petitioner’s position was really to make way for another, and therefore only a sham, cannоt be tried herein, because of the delay of the petitioner m instituting this proceeding. It has been decided thаt a delay of more than four months bars an appliсation for a mandamus for reinstatement (People v. Justices of Court of General Sessions, 78 Hun, 334, 29 N. Y. Supp. 157), and this petitioner delayed more than eleven months. It is insisted that the conduct of the comptroller was willful and wrongful. I do not seе how that affects the case. The only remedy provided for that is by indictment. The said veteran statute expressly prohibits the removal of a veteran exceрt for cause shown after a hearing, but imposes no рunishment for a violation thereof. But section 155 of the Penal Code provides that, “where the performanсe of any act is prohibited by a statute, and no penalty for ‍‌‌‌‌‌‌‌​​‌​​‌​​‌‌​‌‌‌‌​‌​‌‌​​​‌​​‌‌​‌​​​‌​‌​​‌​​‍the violation of such statute is imposed by any statute, the doing such act is a misdemeanor.” This general provision covers the unlawful removal of veterans by а public officer, and makes it a general misdemeanor, which is made punishable by imprisonment not exceеding one year, or fine not exceeding $500, or both. Pen. Code, § 15. While no such criminal prosecution has yet been had for violation of the veteran statute, like criminаl prosecutions have been sustained in similar cases. Gardner v. People, 62 N. Y. 299; People v. Norton, *8357 Barb. 477. So many veterans have had to apply to this court for reinstatement during the last two years that it ‍‌‌‌‌‌‌‌​​‌​​‌​​‌‌​‌‌‌‌​‌​‌‌​​​‌​​‌‌​‌​​​‌​‌​​‌​​‍is deemed timely not to pass unnoticed the plaintiff’s claim of a wrongful removal. Motion denied.