153 N.Y. 513 | NY | 1897
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *517
On the twentieth of April, 1888, the board of health of the city of Troy, which was then organized pursuant to chapter 270 of the Laws of 1885, assumed to appoint the relator to the position of registrar of vital statistics in the place of Samuel E. Hutton, who had resigned on the same day. At the time of such appointment the relator had not passed, nor so far as appears has he at any time since passed, the examination required by the statutes regulating the civil service of the state. (L. 1883, ch. 354; L. 1884, ch. 410.) He assumed the duties of the position and continued to discharge them until the fourth of June, 1896, when the new board of health, organized under chapter 661 of the Laws of 1893, without preferring charges or giving him an opportunity to be heard, dispensed with his services and in his place employed one Edward Bolton, who has ever since performed the same duties and has received the compensation allowed by law. The relator, who is an honorably discharged Union soldier, instituted this proceeding to compel the defendants, composing the board of health of the city of Troy, "to recognize and restore" him to said position upon the ground that said board had no power to discharge him until after a hearing upon due notice, founded upon a charge of misconduct or incompetency. No question is raised as to the regularity of the appointment of Mr. Bolton, who is not a party to the proceeding, provided there was a vacancy to be filled, and it is not denied that the defendants had authority to remove the relator at any time they saw fit, without hearing or notice, unless he was protected by some statute. (People ex rel.Griffin v. Lathrop,
The object of the amendment of 1896 was to remedy a defect that was pointed out in People ex rel. Fonda v. Morton (
For these reasons we feel that it is our duty to reverse the order appealed from and to dismiss the proceeding, with costs.
All concur, except GRAY, J., absent, and BARTLETT, J., not voting.
Order reversed.