53 N.Y.S. 274 | N.Y. App. Div. | 1898
Upon the adoption of the charter of the Greater New York (Chap. 378, Laws of 1897), the relator held the office of fire marshal in and for. the city of Brooklyn. This office was created by chapter 373 of the Laws of 1889, which was an amendment to the charter of the city of Brooklyn (Chap. 583, Laws of 1888). The relator was appointed by the fire commissioner, and held office during his pleasure. The duties attached to said office were, among other things, the investigation of fires and their origin, and to report to the commissioner his. opinion and conclusion of the matter investigated. By an amendment, adopted in 1892, this law was amended (Laws of 1892, chap. 445), wherein it was provided that such fire marshal “ shall rank as a member of the uniformed fire force of the department of fire, and shall be-entitled to all the privileges and immunities thereof,” except that he should not be placed upon the pension roll of the firemen’s insurance fund. The power of removal by the commissioner at pleasure was omit-ted. The amendment, therefore, accomplished two things affecting the status of the relator to the office; it prevented his removal from the office at the pleasure of the commissioner, and it made him a member of the force with such privileges and immunities as were enjoyed by the uniformed fire force of the "department of fire of such city. By section 9 of title 13 of the charter of the city of Brooklyn, the fire commissioner was required to make suitable regulations, under which the officers and men of the department were required to wear an appropriate uniform and badges, and this seems to have embraced, pursuant to sections 5, 6 and 7 of the same title of such charter, all of the officers and members of the fire department. For by the provisions-of section 8 the names of all members of the fire department were required to be enrolled, under the direction of the fire.commissioners. It seems clear from the provisions of these sections that the purpose was to have all of the officers and employees constituting the fire department uniformed, and as by the provisions of the act, the fire marshal was appointed by the fire commissioner,-and subject by its terms to his direction and control, and required to report to him, such commissioner was undoubtedly authorized to require the fire marshal
The relator was subject to this rule with all its privileges and immunities. The language of the act, “ he shall rank as a member,” in view of the duties he was to perform, and his relation to the. department and its commissioner, seems to make it the intention of the Legislature that lie-should so rank within the force as a member; not that he should be considered outside of the force entitled to certain privileges and immunities measured by what certain persons therein enjoyed, but that he was within the force a member with his rights and privileges like the other members of the uniformed force. Such we believe to have been the intention to be gathered from the entire scheme,, and, therefore, we are led to hold that he was a part of the uniformed fire department of the city. Such being the status of the relator in the fire department of the city of Brooklyn, we proceed to examine what his status was under the 'Greater Hew York charter. . Section 722 of such charter provides: The officers and members of the uniformed force and legally appointed firemen in the corporation formerly known as the mayor, aldermen and commonalty of the city of Hew York, and in the city of Brooklyn and in the city of Long Island City are hereby made members of the fire department óf the city of Hew York, as
Section 779 provides: “ The fire commissioner is hereby authorized to appoint and remove a fire marshal for the boroughs of Manhattan, The Bronx and Richmond, and a fire marshal to be seated, in Brooklyn and to exercise his powers within the boroughs of Brooklyn and Queens.”
By the express provisions of the charter the uniformed fire force of the city of Brooklyn was continued as constituted when consolidation took effect, and its members became entitled to hold their respective-positions and rank as nearly as the same was practicable under the new conditions. This depended upon the question whether the position •held by any such member or a similar one existed under the consolidated governments. By the terms of the second section, which we-have cited, provision is made for a fire marshal to be seated in the borough of Brooklyn, with authority to exercise power in such borough and in the borough of Queens. The question does not, therefore, permit of argument, as it rests upon clear legislative enactment, and, as so expressed, the uniformed fire force, officers and men of the city of Brooklyn were made members of the fire department off the city of Hew York, with the rank and grade held by them at. the-time when they were so ma.de a part. This was something more than a transference of the person, with mere right of appointment, which might or might, not be exercised, dependent upon the volition of the-, appointing power. The transfer was a transfer of the force as it. was, with rank and grade as existing at such time, subject only to-the qualification that in the Hew York fire department the same or similar positions were in existence and Were continued. The provision, therefore, which authorized the office of fire marshal to be seated in the boroughs of Brooklyn and Queens was precisely similar in character to the position which the relator held under the charter of the city of Brooklyn, the only change being in the extent of jurisdiction over which his authority was extended and the somewhat enlarged character of his duties. An examination, however, of sections 779 to 783 inclusive, of the charter, shows that the duties devolved upon the fire marshal by the Hew York charter are the same in character as existed under the Brooklyn city charter, sped
This brings us to a consideration of the question of the tenure of office enjoyed by the. relator. By section 779 of the charter of New York, the fire commissioner is authorized to appoint and remove fire marshals. Unless, therefore, the relator is saved from the operation of that section by force of some other law, this action must fail, as the power to remove is at the pleasure of the commissioner. It is claimed that the relator is so saved under the veteran acts. That he is an honorably discharged soldier of the late war is conceded. We have already seen that the relator was protected in his tenure of office under the charter-of the city of Brooklyn during good behavior, and he was also undoubtedly protected under the veteran acts. By section 127 of the Greater Rew York charter, it is provided: “All veterans either of the army or navy or the volunteer fire departments, now in the service of either of the municipal and public corporations hereby consolidated, who are now
There can be no doubt but that in terms this section is broad enough to embrace the relator. This view is scarcely contended against. It also appears'that the office' held by the relator is a subordinate office under the decision we have cited, construing section 1536, and also by virtue of the Hew York charter .provision (§ 728). It, therefore, follows that the relator is protected, . unless section 779 is controlling. (People ex rel. Corrigan v. The Mayor, 149 N. Y. 215; People ex rel. Fallon v. Wright, 150 id. 444.) The views expressed by this court through Mr. Justice Cullen, in People ex rel. Earl v. England (16 App. Div. 97), do not conflict with this holding. It was therein recognized that a subordinate officer "was protected by the veteran acts, adopting, in . this respect, the language of Andrews, Ch. J., in People ex rel. Fonda v. Morton (148 N. Y. 156). That relator was a subordinate we have already announced, ¡and that he.was such, an officer as is protected must necessarily follow. The charter must be construed as a whole, and upon this subject it seems to have been the evident policy of its framers to extend the protection guaranteed by the veteran acts to all persons embraced within their terms, who should be transferred from the- positions occupied. by them in the several municipalities consolidated to similar positions in the consolidated city. There would seem to be no reason why the rule should not be applicable to public servants under one government as was- operative under the'other, as the character of the duties performed remains, in all substantial particulars, the same, and is exercised in. practically the same territory. In this respect we approve of the reasoning by Mr. Justice Chase in Matter of Jacobus (N. Y. L. J. May 25, 1898). Such being the manifest policy, section 779 must be deemed to have been enacted in subordination to its provisions, and, in the absence of words expressly excepting, the office from the operation of the prevailing policy of the statute, no different rule can obtain. There may be cases where there is an inconsistency in applying such rule, as where the scheme of the
It follows that the judgment should be reversed, and jndgmfent ordered for the plaintiff, in accordance with the prayer of the complaint.
All concurred, except Woodward, J., absent.
Judgment reversed, and judgment ordered in favor of the plaintiffs in accordance with the prayer of the complaint, with costs.