37 N.Y.S. 718 | N.Y. App. Div. | 1896
This case cannot be -distinguished from The People ex rel. Fonda v. Morton (148 N. Y. 156). It was there held that chapter 312 of the Laws of 1884,- as amended by chapter 116 of the Laws of 1894, making veteran appointees irremovable from office, except for • incompetency, left it to the removing power to determine whether the facts exist which authorize a removal. It is claimed that the notice of removal in that case specified the ground, while here it does not. There is nothing in the opinion in that case , which-justifies the distinction claimed. The court said that “ it appeared from the return to his (Fonda’s) application that he was discharged for cause, .or, as was stated therein, for • incompetency and conduct inconsistent with said position.’ ” This also appears in the present return. The court also said that the removal there was made for the cause specified in the statute: That conclusion, however, was arrived at from the return, not apparently from the language of the ’ notice of removal. It would undoubtedly have been better had the formal notice in the present case specified .the' ground of removal. But the material fact,is that the removal was actually for the cause specified in the' statute. That is stated distinctly in the return, and cannot be questioned in an application of this' character. It is impossible to grant a mandamus restoring the relator when the commissioner of public works states under oath that he was discharged “ solely for negligence, incompetency and conduct not consistent with the position held by him.” It is the -fact, and not the form of expressing the fact, which must govern upon an application for a ■peremptory mandamus to reinstate the removed appointee.
The order appealéd from should be reversed, with costs, and the application denied, with costs.
Yabt Beunt P. J., Rumsey, O’Bbien and Ingbaham, ' J«L, concurred.
Order reversed, with costs, and application denied, with costs.