70 N.Y.S. 442 | N.Y. App. Div. | 1901
Relator, an honorably discharged soldier of the Civil war, was appointed a violation notice server in- the department of buildings of the city of New York at a salary of $160 per month, to take effect September 1, 1899. The position is in the classified service of the municipal civil service, and the appointment was made for a probationary term of three months, as provided by rule 35 of the municipal civil service rules; he was dismissed on or about the 15th day of Hovember, 1899, during the probationary period, for alleged incompetency, without notice and without opportunity to render an explanation or trial of any kind.
Relator sent a written request to the commissioner that he be restored to his position and salary, on the 17th day of Hovember, 1900, a year after his dismissal. In his petition relator asks to be reinstated and for his salary since the time of his dismissal, claiming that, his removal was illegal. This relief was granted by the order of the Special Terra, from which order this appeal is taken.
It is, undoubtedly, the rule that during the probationary period the relator could not be removed, except upon charges and opportunity given for a hearing. (People ex rel. Kastor v. Kearny, 164 N. Y. 64.) His removal was, therefore, illegal. He had no right, however, to any fixed term of retention in his employment beyond the probationary period, which expired within fifteen days after the unlawful removal. If reinstated, therefore, it could only be for such period and the only right which he could obtain would be his salary covering that time. For at the expiration of his term of probation his services might be dispensed with without trial or héaring, assuming that the person vested with the power to dispense with the service acted in' good faith in dismissing the relator at that time. (People ex rel. White v. Coler, 56 App. Div. 171.) The most,
The order should, therefore, be reversed, with ten dollars costs and disbursements,, and the application be denied, with ten dollars costs.
Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred,
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.