147 N.Y.S. 1036 | N.Y. Sup. Ct. | 1914
It seems to me that the only question involved in this matter is one of law, to wit, whether a veteran volunteer fireman is entitled to preference in retention in his employment as one of a class — one of a number of laborers — when there is a general reduction in the force for reasons of economy. That is, whether in reducing the force, those laborers who are not veterans should be discharged first. If there is such a preference, the relator should be restored to his employment, because it is conceded that the reduction in the force of laborers having been made, the relator is out of work, while his fellow laborers, members of the same gang or division and doing identically the same work, who are not veteran volunteer firemen or veterans of any class favored by the Civil Service Law, are still retained. I do not think it is serviceable to discuss the claim that relator has not been discharged and is only suspended; that his name is on a preferred list of some kind from which he will be assigned to work when necessity arises. Because it is admitted that he is out of work, losing his daily wages, and if he is right in his claim, it is no answer to say that he may be employed in the future. I do not understand the obiter statement of the court in Cottam v. City of New York, 74 Misc. Rep. 67, that, “ the cases
This decision has been followed under the doctrine of stare decisis in two special term cases in New York county. People v. McAneny, 144 N. Y. Supp. 121 ; Hurlbut v. Cromwell, 147 id. 1035. My respect for the rule of stare decisis and for the learned justices who wrote in the cases referred to would lead me to follow their interpretation of the statute, but we have been recently admonished that the doctrine of stare decisis does not relieve a judge of responsibility in a case like this, when no decision has been rendered by the court of last resort, or when no conclusive reason is given for the decision, reached. Montrose v. Baggott, 161 App. Div. 494. No reason is given for the statement that the preference in retention in employment ac corded to the veterans of the Civil War has not been extended to the veterans of the Spanish War and the veteran volunteer firemen. Why not? Is not this the specific requirement of section 22 of the Civil Service Law?
“ § 22. Power of removal limited.— Every person whose rights may be in any way prejudiced contrary to any of the provisions of this section shall be entitled to a writ of mandamus to remedy the wrong. No person holding a position by appointment or employment in the state of New York or in the several cities, counties, towns or villages thereof who is an honorably discharged soldier, sailor or marine, having served as such in the Union army or navy during the war of the rebellion, or who is an honorably discharged
This is not a case where the respondent is asked to create a vacancy or to discharge some other competent workman in order to give the relator work. The work in which relator’s gang was engaged still remains to be done. It is going on daily. This is not a case where the relator filled any special office or position He was one of a class, all engaged in similar work. The respondent has removed or suspended the veteran relator under color of reducing the force, and has transferred to the same force from other occupations men entitled to no statutory preference. No adequate reason is given for the conceded preference in reten tion in employment given to these fortunate individ
Again, the provisions of the statute (Civil Service Law, § 22, supra), on which the respondent seeks to justify relator’s so-called suspension and the placing’ of his name on a list for preference in reappointment, is: “If the position so held by any such honorably discharged soldier, sailor or marine or volunteer fireman shall become unnecessary or be abolished for reasons of economy or otherwise, the said honorably discharged soldier, sailor or marine or volunteer fireman holding the same shall not be discharged from the public service, but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill, receiving the same compensation therefor, and it is hereby made the duty of all persons clothed with power of appointment to make such transfer effective. The burden of proving incompetency or misconduct shall be upon the person alleging the same. In every county of the state wholly included within tip limits of a city but not comprising the whole of such city, no regular clerk or head of a bureau or person holding a position in the classified state civil service, subject to competitive examination, shall be removed until he has been allowed an opportunity of making an explanation; and in every case of removal the true grounds therefor shall be forthwith entered upon the records of the department of the office in which he has been employed, and a copy filed with the state civil service commission. In ease of a removal, a statement showing the reasons therefor shall be filed in the de partment or office where such clerk, head of a bureau or person had been employed. Whenever such offices, positions or employments in every county of the state hereinbefore specified are abolished or made unneces
I think it is apparent that the position held by the relator has not become unnecessary and has not been abolished. It still continues—but other men, not vet-' erans, are, continued in it. The respondent asks: ‘ Shall we discharge a faithful employee to make room for the veteran? ” No, but you must not discharge a veteran who is a faithful employee to make room, or as a makeshift to continue in employment, a man who, although he may bé equally efficient, has not earned the preference which the policy of the state clearly gives the veterans in the statute cited, placing them, as far as legislative command can ,do so, in the
I think he should he restored to work. If it is necessary to reduce the force so that the reduction reaches the veterans, then removal cannot be avoided, but until ■that time the command of the statute is that he shall not be removed.
Application granted.