132 N.Y.S. 115 | N.Y. App. Div. | 1911
The appellant took office as comptroller of the city of New York on January 1, 1910. At that time there were eight persons, including the relator, holding positions as deputy city paymasters, which positions were in the' exempt class.. The appellant removed the eight persons holding said positions and appointed eight others of his own selection. The relator claims' that his removal was for political reasons and, therefore, in violation of section 25 of the Civil Service Law (Consol. Laws, chap. T, Laws of 1909, chap. 15).- A single question w&s submitted to the jury, to wit, “Was the removal of the relator in any manner affected or influenced by or because of his political opinions or affiliations,” to which the jury answered “Yes.”
Said section 2S, so far as material, provides: “Norecommendation or question under the authority of this chapter shall relate to the political opinions or affiliations of any person whatever; and no appointment or selection to or removal from an office or employment within the scope of the rules established as aforesaid, shall be in any manner affected or influenced by such opinions or affiliations.” The section does not provide that a person, removed contrary to its provisions, shall be entitled to a writ of mandamus to compel his reinstatement. Section %1, which deals with the preference to he allowed honorably discharged soldiers, sailors or marines, expressly provides that a refusal to allow the preference provided for therein and in the next succeeding section, shall, he deemed a misdemeanor, and that such honorably discharged soldier, sailor or marine shall have a remedy by mandamus for righting the wrong. The first sentence of the succeeding section £2 is as follows: ‘ ‘ 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.” (See, also, Laws of 1910, chap. 264, amdg. said § 22.) That section deals with two classes of removals: 1. The removal of a person who is an honorably discharged soldier, sailor or marine, or who shall have served the term required by law in the volunteer fire department of any city,.
The relator was not a veteran, a regular clerk, a head of a bureau or a person holding a position in the classified State or municipal civil service, subject to competitive examination. The learned counsel for the respondent was asked upon the oral argument to refer the court to specific statutory authority for the maintenance of this proceeding, but he was unable to do so, and we have been unable to find any provision giving a person removed in violation of section 25 the right to a writ of mandamus to compel his reinstatement. The care shown by the Legislature expressly to confer the right in the particular cases referred to, and the omission of any such provision from
The words “office or employment within the scope of the rules established as aforesaid” require construction. The words “ rules established as aforesaid ” obviously refer to the rules established by the preceding sections or to be established by the State or municipal civil service commission pursuant thereto. Section 6 prescribes the powers and duties of the State Civil Service Commission, among others, to “prescribe, amend and enforce suitable rules and regulations for carrying into effect the provisions of this chapter and of section nine of article five of the Constitution of the State of New York, as herein provided.”
Section 9 provides that the civil service of the State and' of each of its civil divisions and cities shall be divided into an unclassified and a classified service, and it defines each. Section 10 provides' for rules for the classified service. Section- 11 provides for the appointment of municipal civil service commissioners who, among other things, are to prescribe, amend and enforce rules for- the classification of the classified service of the city. Section 12 provides that the classified service shall be divided into four classes: -1, exempt class; 2, competitive class; 3, non-competitive class-; 4, the labor class in cities. Sections 13, 14, 17 and 18 respectively define those classes. Section 13 provides that the exempt class shall include: 1, the deputies of principal executive, officers authorized by law to act generally for and in place of their principals; 2, one secretary of each officer, board and commission authorized by law to appoint a secretary; 3, one clerk, one deputy clerk, if authorized by law, of each court, one clerk of each elective judicial officer; 4, in this subdivision it is provided, among other things, that “ there may be included in the exempt class all other subordinate offices for the filling of which competitive or non-competitive examination may be found to be not practicable.”
Our attention is called to the case of People ex rel. Gallup v. Williams (139 App. Div. 355). . It clearly appears- from the opinión in that case that the position to which the relator
The order should be reversed with costs, and the proceedings dismissed with fifty dollars costs.
Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.
Order reversed, with costs, and proceedings dismissed, with fifty dollars costs.