34 A.D. 313 | N.Y. App. Div. | 1898
The writ was dismissed at the trial upon the relator’s opening, the learned trial judge holding that the allegations of the writ were insufficient to constitute any cause of grievance against the respondents. The relator alleges that he is an honorably discharged Union soldier; that on or about the 30th day of October, 1874, he entered the employ of the dock department as an expert painterthat on October 18, 1875, he was appointed also as an inspector of painting and general repairs, and that he continued in the employ of the department up to the 31st day of October, 1894, when he was discharged by a resolution in the following words :
“ Resolved, That William H. Cunliffe, William C. Rogers and George N. Baker, painters, be and hereby are honorably discharged • .from the service, of this department, to take effect November 1st, 1894, pursuant to the provisions of the Saxton Bill.”
The relator' also alleges that during the entire period of his employment he was continuously occupied as such employee, and at all times performed his work to the entire satisfaction of the department. The details of his continuous service are fully set forth. He also alleges that at the time of his discharge he was actually employed in supervising a particular piece of work, which would have required for- its completion about two weeks more time; that there was, down to the date of the writ, work to be performed, by the department of the character upon which he had previously been engaged.; that since his discharge such work had actually been performed by the department, and that other men who were not honorably discharged Union soldiers had been employed to perform such
The facts here averred brought the relator’s case within the provisions of chapter 716 of the Laws of 1894. This act, which was in force at the time when the relator was discharged, in terms embraces all the cities, towns and villages of the State. It provides that m all oases the .person having the power of employment oi-appointment, unless the statute provides for a definite term, shall have the power of removal only for incompetency and conduct inconsistent with the position held by the employee or appointee. The claim is made that, because, at the time of the passage of this, act, chapter 577 of the Laws of 1892 was in full force and effect, and this latter chapter in some degree protected veterans holding-positions by appointment in cities, it was not intended by the act of 1894 to make further provision for their protection when employed in strictly corporate work, but only to bring them, when engaged in State work done in cities, within the purview of the general statute. We see no reason for thus limiting the operation of the general act of 1894. It is broad enough to cover all public works of the cities of the State, whether municipal or governmental. It is apparent from the reading-of the two acts that the intention was to extend the protection afforded to veteran appointees by the act of 1892, relating to cities, to all employees, whether in the receipt of a definite salary, or compensated for their labor by daily wages. We quite agree with the respondents that the two acts are i/npwri materia and should be construed together. But what then ? The act of 1892 merely provides that no person holding a position by appointment, or who may hereafter be appointed, in any city or county of the State, receiving a salary from such city, who is an honorably discharged soldier, shall be removed from such position except for cause shown after a hearing had. This did not give the veteran any right to preferential appointment or employment. In securing an appointment or employment he was still upon equal terms with all other citizens. It was only after he had secured appointment, with a fixed salary, that the act shielded him. The act of 1894, however, grants to the veteran the full measuré of the
It follows that the relator’s allegation of employment was sufficient ; that no allegation of a2ipointment Avith a salary Avas requisite, and that, as the relator was removed for reasons other than those authorized by the act of 1894, the removal was unlawful. The respondents could only remove him for inconpetency and conduct inconsistent with the position held, and the burden of alleging and proving that incompetency and inconsistent conduct was upon, them.
The judgment should, therefore, be reversed and a new trial ordered, with costs to the a2ypellant to abide the event.
"Van Brunt, P. J., Rumsey, Ingraham and McLaughlin, JJ., concurred.
Judgment reversed, new trial ordered, costs to a2>pellant to abide event. - •
