People ex rel. Collins v. Ahearn

104 N.Y.S. 860 | N.Y. App. Div. | 1907

Clarke, J.:

On the 1st day of January,' 1904, the relator was removed from the position of superintendent of highways in the office of the president of the borough of Manhattan and George F. Scannell appointed tó said position."

On the 21st day of January, 1904, the relator verified a petition for the purpose of obtaining the issuance of a peremptory writ of mandamus commanding the borough president to restore and reinstate the deponent to the position and bureau from .which he had been excluded. This petition alleged that on or about the 1st day of January, 1902, Jacob A. Cantor, as president of the borough, by virtue of his office and the powers and authority conferred'upon him by law, duly created and established in said borough of Manhattan the bureau of highways, and duly appointed and designated the petitioner as the head of said bureau aka salary of $4,000 per annum, which salary 'was subsequently increased to $5,000 per annum; that the deponent ,at all the times herein mentioned was and now is the head of said bureau of highways,- and the only person lawfully entitled to said position, deponent having never been legally removed therefrom; that by virtue of the provisions of section 1543- of the Greater New York charter he could not be removed from said position until he had been allowed an opportunity of making an explanation, and the true ground for his removal entered upon the records of the department or bureau or borough president; that on or about the 1st of January, 1904, the defendant unlawfully issued a paper to one George F. Scannell purporting to designate said Scannell to said position, and that deponent has been excluded from the office, never allowed po make an explanation, néver served with any charges or complaint and praying for a reinstatement.

In People ex rel. Michales v. Ahearn (111 App. Div. 741), decided March 9, 1906, where Michales undertook to be reinstated by mandamus, claiming that he was the head of the bureau of sewers in the office of the borough president, Mr. Justice Íítgeaham pointed out that the relator’s right to reinstatement must depend upon. his holding the position of a head of a bureau within section 1543 of the charter (Laws of 1901, chap. 466), and that the only bureau provided for in the charter in the office of the borough president was the' bureau of buildings that there was no power lodged in the borough president to create a bureau and that the alternative writ did not allege that there had ever been created in the office of the borough president, either by the board of aldermen or by. any other lawful authority, a bureau of sewers. He said: u To entitle the relator to the protection of this provision, it is necessary • that he should allege' that he was at the head of a bureau created by the charter, or by an official who was given by the charter authority to create bureaus.” The demurrer to the alternative writ was sustained.

To meet that exposition of the law this relator procured to be put into the alternative writ allowed on the 12th day of November, 1906, the allegation : a That the board of aldermen duly ratified, approved and confirmed the act of said president of the borough in creating the said bureau of highways and appointing the-said James G. Oollins, the relator herein,, as the head of said bureau.” That allegation was not contained in the affidavit applying for the issuance of the writ. It was offered for the first time some seventeen months after the original affidavit was verified. Thereupon the appellant moved to strike out the allegation as new matter not contained in the moving papers. The relator undertakes to justify that allegation by asserting that there were attached to,the original papers certain ■extracts 'from the budget, in which there appeared under, the head “President of the Borough of Manhattan,” “bureau of highways” and other bureaus, with a gross, item for salaries, and argues that inasmuch as the budget was made up in this manner this was an ■ establishment of the bureau of highways by ''the duly authorized authority which Mr, Justice Ingraham, pointed put was the legislative body ■ in whom was vested, by; the revised charter of 1901, the power to create .bureaus theretofore conferred upon the head of the department;of highways.: This is an assumption for which we find no authority. In dealing with the budget the matters consid- . ered are financial, not legislative. As it has been helcl that the inclusion of salary items in' the budget is not a fixing of an individual’s salary- (Lyons v. City of New York, 82 App. Div. 306), so the allusion to these bureaus for the mere purpose of identification is not the creation of the bureau of the kind meant by the law, fix- , ing and defining the: status of the head thereof. They are in the same category as the bureau in the fire department considered in People ex rel. Emerick v. Board of Fire Comrs. of N. Y. (86 N. Y. 149), cited as authority in the Michales Case (supra).

I, therefore, conclude that- the exhibits attached to the original affidavit contain no warrant for the claim that the paragraph here, complained of was as matter of fact included in such'moving papers,- and that, therefore, the making of an independent allegation, of fact of such an important character is in effect the institution of a new proceeding. Its insertion in the wilt, without support by proof' eighteen- months after the removal of relator, was not only, unauthorized but was too-late. -,. It has-been held that four months is the statutory period within which a mandamus proceeding can be brought, by analogy 'to certiorari proceedings. (People ex rel. Miller v. Justices, etc., 78 Hun, 334; People ex rel. Young v. Collis, 6 App. Div. 467.)

It follows that this allegation should be stricken out. “ The Code of Civil. Procedure contemplates the issuance of a writ of mandamus, whether it be peremptory or alternative, only upon affidavits or other -written proofs showing a proper case therefor. (Code Civ. Proc. §§.2067, 2070.) ” (People ex rel. Bourke v. Grout, 107 App. Div. 228.) Therefore, the order appealed from should be reversed, with ten dollars' costs and -disbursement's, and the motion granted, with ten dollars costs, and an extension of time granted to appellant to answer the alternative writ thus amended, move or demur within twenty days after service of notice of "the entry of the order to be entered herein.

Ingraham, Laughlin, Scott and Lambert, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs; extension of time granted as stated in opinion.