177 A.D. 706 | N.Y. App. Div. | 1917
The relator, a soldier of the Spanish-American war, having passed an examination for the position, was, in March, 1914, appointed storekeeper at Sing Sing Prison. On December first, following, Thomas Mott Osborne became the warden of the prison, and, on September 23, 1915, temporarily suspended Kelly, and on or about December 28, 1915, dismissed him. The charges were: (1) That Kelly in excess of authority offered to trade Grossman a calf belonging to the prison, regardless of the consent of the proper authorities; (2) that in the purchase of supplies enumerated the relator “incompetently and wrongfully exceeded the price for which the' same supplies could be purchased by the exercise of due care and good faith; ” (3) that on a given date relator spoke “ disrespectfully of the management of Sing Sing Prison and of the warden thereof to Mr. J. J. Molloy.”" The Civil Service Law, section 22, says: “No person holding a position by appointment or employment in the State of New York * * * who is an honorably discharged soldier * * * having served as such in the army * * * of the United States during the late war with Spain * * * shall be removed from such position except for incompetency or misconduct shown after a hearing upon due notice upon stated charges, and with the right to such employee or appointee to a review by a writ of certiorari.” (Consol. Laws, chap. 7 [Laws of 1909, chap. 15], § 22, as amd. by Laws of 1910, chap. 264.) We think that the specifications have not been proven. The charges one and three are trivial. The second specification relates to the alleged failure of the relator to make purchases for the warden’s private table at prices that would bring the monthly expenditure within the $175 allowed to him. There is no suggestion of insufficiency or incompetency on the part of the storekeeper in his relation to the prison at large. Assuming that the function of providing for
The determination should be reversed, and the relator reinstated, without costs.
Jenks, P. J., Hills, Rich and Putnam, JJ., concurred.
Determination reversed, and relator reinstated, without costs.