62 N.Y.S. 930 | N.Y. App. Div. | 1900
The relator, claiming to have been unlawfully removed, in January, 1898, from a position in the fire department of the city of New York, applied for an order requiring the fire commissioner .to show cause why a peremptory writ of mandamus should' not issue to restore him to the position theretofore held by him as laborer in the fire department, and to assign him to the duties of inspector of hydrants or to such other service or duty as the court might deem proper. The defendant fire commissioner, through the corporation counsel, filed a return to the application,. and at the hearing the court directed that an alternative writ issue. Such writ was issued and a new return was made by the defendant. At the trial, with-, out á jury, the court dismissed the alternative writ of mandamus and gave judgment against the relator for costs. From such judgment the relator- appeals.
The parties agreed upon a statement of facts, which may be condensed as follows: The relator is a resident of the borough of-Brooklyn and an honorably-discharged Union soldier of the Civil-war. On December 29, 1894, under chapter 104 of the Laws of that year (amending § 2 of title 13 of chap. 583 of the Laws of 1888, the Brooklyn charter), the fire commissioner of Brooklyn appointed the relator as a laborer in the fire department, for the purpose of -inspecting fire hydrants, at three dollars per day, the time not being fixed by statute or otherwise. His duties were those required by the act. He was assigned to duty and continued in the discharge thereof up to ..January 19, 1898, when he received from Mr. Tully, the deputy fire commissioner of the boroughs of Brooklyn and Queens, a notice saying that “ In the absence of any provision in the charter for the1 City of New York authorizing the inspection of fire hydrants by employees of this Department, you are hereby notified to report for duty to the Commissioner of the Department of Water -Supply.” On the same day he reported accordingly and was informed that such transfer was irregular and that he could not be received there. He reported back to the fire department,.and on January twentieth the defendant sent him the following discharge: “ Inspector of fire hydrants is hereby discharged the service, of the Department, to take effect from 4 p. m. January 19, 1898.” This discharge was made with out-notice to the relator and without cause assigned, charges made or hearing
There was-evidence at the trial that the relator’s pay was increased on December 1, 1897, from $3 per diem to $1,100 per annum, and that under section 1536 of the charter, by action- of the mayor, the officers, members, subordinates and employees of the fire department of Brooklyn were transferred to the fife department as constituted by the charter and assigned to duty in the borough of Brooklyn, under the same positions as they respectively were holding-previously to the said action of the mayor.
The following occurred at the trial and is taken from the record r “ The Court: There is no charge here, as I understand it, of any bad faith on the part of Commissioner Scanned; that it was a case
Mr. Short, foreman of the Brooklyn repair shop for fire hydrants, etc., in the water department, testified that the men under him inspect fire hydrants and repair them whenever the foremen of the several fire companies report to his department anything out of order in such hydrants.
Mi1-. Murray, deputy • chief of the fire department, testified that the city is laid out in districts and that the foreman of the fire company in each 'district is responsible for the care of the hydrants in •the district, and details some member of his company to inspect and report as to them, but that there is' no one in the fire department who performs in their entirety the duties that had been performed by the relator.
The return of the defendant to the alternative writ sets up that the control of fire hydrants is in the commissioner of the department of water supply; that there were in such department at the time of the relator’s discharge a sufficient number of men engaged in the inspection and repair of hydrants; that the position of the relator was necessary no longer, and that he abolished the same for reasons of. economy and, consequently, 'discharged the relator. The return also sets up that, for purposes of uniformity, the rules existing in the boroughs of Manhattan and the Bronx, providing that the uniformed force-of the fire department should inspect the hydrants, were extended to the boroughs of Brooklyn and' Queens, and that this has been done by such force; that when the relator was discharged there was no work in the fire department requiring his services, as laborer or otherwise, and that the relator did not make any other claim' that there was any work to be performed in the -department except the duty of inspecting fire hydrants in Brooklyn.
The learned court at Special Term rendered the following-decision :
“ I decide that the relator is not entitled'to the relief sought and that the proceedings should be dismissed upon the following grounds :
*449 “ While the relator was a laborer, as distinguished from the clerical force, he belonged to a class by itself for all the purposes of this proceeding. He was appointed by virtue of a statute which authorized appointments of fire hydrant inspectors only. It is not material that his duties are to be classed as labor, and the fact that other non-veteran general laborers have been retained, while lie has been removed, does not affect Ms right to relief.
“The service which the relator performed has been, whether wisely or not- is not material, to some extent dispensed with by the present city government, and the Fire Commissioner has in good faith, for the purposes of economy, imposed the duties of that service, so far as it is now performed at all, upon the uniformed force of the department.”
The relator contends: First, that the duty of inspecting fire hydrants is imposed by the charter of the city of New York upon the fire department and that such duty is performed by members of the department (this does not seem to be controverted by the corporation counsel); second, that this duty having been imposed on laborers in the department the latter must continue to employ laborers for that purpose; third, that the relator, being a veteran, cannot be summarily removed from his position except after hearing upon due notice; foiorth, that the charter, section 1536, exempts veterans in the fire department from the provisions as to transfers and that the relator was entitled to be continued in his previous position, and, fifth, that the relator was. not an official, but simply a laborer, and that there was no office to abolish.
The real question involved in the relator’s points is whether or not, under chapter 821 of the Laws of 1896, amending chapter 312 -of the Laws of 1884, the fire department had the light to abolish the position held by the relator, without notice and hearing, so long as other laborers, not veterans, were retained in the service.
This question was set at rest by People ex rel. Corrigan v. The Mayor, etc. (149 N. Y. 215), where the court held as to acts forbidding the removal of veterans holding salaried positions, except for cause shown and after hearing, that such acts were not intended to give occupants of such positions life tenures where, upon grounds of economy or for other proper reasons, the offices or positions were
The act of 1896, passed subsequently to that decision, contains provisions similar to those in the previous acts referred to, viz., that veterans holding positions in the civil service of a city shall not be removed except after a hearing upon due notice, but we .find no legislation which changes the rule announced, that a removal may properly be made when the position is abolished on economical grounds.
Section 127 of the Greater New York charter does not alter this rule. The section was under consideration in People ex rel. Jacobus v. Van Wyck (157 N. Y. 495), where the court said that its purpose was to continue in the service of' the city such veterans as would have been entitled to remain in office had the new charter not been passed, and that.the section did not add to or take from the veteran statutes. This doctrine was applied by this court in People ex rel. Schumann v. Coler (38 App. Div. 615).
We are thus left to the question whether the position which the relator had was abolished in good faith and- for reasons of economy. This was a question'of fact. It appears that sixteen other veterans occupying positions similar to that of the relator were removed in January, 1898, and that there was evidence tending to show that this was done so as to bring about uniformity in the rules and method of inspecting fire hydrants over the entire city by extending over Brooklyn and Queens the rules which had been in' existence for many years in the old city of New York, the duty in the boroughs of Brooklyn and Queens being devolved upon the fire department instead of the water department, and that this was done from motives of economy. In such a change standing alone we can see no evidence of bad faith on the part of the commissioner, and the relator’s counsel, in answer to a question óf the court, conceded that the commissioner in good faith wanted to discharge seventeen laborers in the repair shop. This condition of affairs would seem
Besides, the claim of the relator is based upon the theory that the inspection of fire hydrants in the borough of Brooklyn must be performed exclusively by laborers'.in the fire department. The vice of this theory is that the Consolidation Act of Brooklyn, as amended by chapter 104 of the Laws of 1894, cited by counsel as authority, contains .no such provision. It is not mandatory. It states that the fire commissioner “is authorized to appoint such laborers as may. be necessary for the inspection of fire hydrants.” This is far from saying that he must apponit them, or that, having appointed them, he must retain them whether “ necessary ” or not, or that he may not abolish the positions for economical reasons. The finding of the court that this was the reason for the abolishment of the position of the relator was well within the evidence.
But it is urged that the commissioner could not abolish the position held by the relator and his associate veterans, and at the same time retain other laborers and also appoint new ones. The difficulty with this claim is that the relator was appointed for special duty in connection with fire hydrants, and it does not appear that the other laborers, who were retained, were exclusively charged with the same duties as the relator.
As the relator was removed in January, 1898, our decision rests upon the laws then existing and has no relation to subsequent legislation in chapter 186 of the Laws of 1898 and chapter 370 of the Laws of 1899 (commonly known as the White Law).
Judgment dismissing alternative writ- of mandamus affirmed, with costs.
All concurred.
Judgment dismissing alternative writ of mandamus affirmed, with costs.
