107 N.Y.S. 957 | N.Y. Sup. Ct. | 1907
This is a proceeding by mandamus, instituted for the purpose of compelling the board of fire commissioners of the city of Elmira to restore the relator to duty as first assistant engineer of the Elmira fire department and reinstate him in his said office or position of first assistant engineer. The motion for a writ of mandamus was made at Special Term and was denied. Thereupon the relator appealed to the Appellate Division, Third Department, and the order of the Special Term was reversed and an alternative writ of mandamus granted. People ex rel. Lazarus v. Cole
This case was originally -tried before Hr. Justice Lyon and a jury, at the Ohemung Trial Term, held in November, 1905, and resulted in a disagreement of the jury. The case was submitted to this court, at this term, upon the evidence taken upon the former hearing, under a stipulation of the parties. I have carefully read and considered the evidence in the case and think that the following facts are clearly established by the evidence: On the 1st day of February, 1904, and for some time prior thereto, the relator was a member of the fire department of the city of Elmira, holding the position of first assistant engineer. At the time in question there were also four other assistant chief engineers, designated respectively as second, third, fourth and fifth assistant chief engineers.
Under the provisions of the city charter (Laws of 1894, chap. 615, § 164), as then in force, it was the duty of the board of fire commissioners to appoint a chief engineer and such assistant engineers as said board might deem necessary, through whom said board might promulgate all rules, regulations and orders to the whole department and who should have the immediate direction and control of the said department, “ subject, however, at all times,to the rules, regulations and orders of said board and to the orders of any member thereof, provided the orders of any such single commissioner do not conflict with the rules, regulations and orders of said board then in effect; and such chief engineer and assistant engineers and each fireman appointed in the manner aforesaid may hold his respective office during good behavior,
At a meeting of said board of fire commissioners, held January 22, 1904, the following resolutions were adopted:
"Resolved, That, on and after February 1, 1904, the following officers, to wit, first assistant engineer and fifth assistant engineer - be, and the same are, hereby abolished.”
"Resolved, That, on and after February 1, 1904, there be and are hereby established the offices of first district chief and second district chief, who shall respectively have charge of that part of the city lying east of the Erie railroad and that part lying west of the Erie railroad. Further resolved, that the said district chiefs shall have immediate control of the men, horses and apparatus in their respective districts, and shall,.in the absence of the chief in their respective districts, perform all duties to be performed by said chief in said district and shall, in the absence of the chief, have full command of fires in said district. Further resolved, that the clerk of the civil service commission be requested to hold an examination as soon as possible of applicants for said offices and certify a list of said applicants eligible for appointment by this board to said offices.”
" Resolved, That the second assistant engineer, third
“ ‘ First — Chief.
“ ‘ Second — First district chief.
“ ‘ Third -—■ Second district chief.
u ‘ Fourth — Captain.’ ”
It will be readily seen that the duties and powers of the district chiefs, as prescribed in the resolution quoted, are exactly such as would be appropriate to an assistant chief engineer. The district chiefs are to “ have immediate control of the men, horses and apparatus in their respective districts and shall, in the absence of the chief in their respective districts, perform all duties to be performed by said chief in said district, and shall, in the absence of the chief, have full command of fires in said district.” I do not see how the duties of assistant engineer could have been more succinctly and clearly defined than is done by this resolution. It is true that the resolution divides the city into two districts, and that the first district chief is given charge of that part of the city lying east of the Erie railroad and the second district chief of that part lying west of the Erie railroad; but this is merely a division of duties and powers between the assistants which the fire commissioners could have made under the authority of section 162 of the charter, without any pretense of abolishing the office of assistant chief engineer or changing the name of said office. ■
It is entirely clear to my mind, from the evidence in the case and from the resolutions of the fire commissioners, that no substantial change was made in' the office or its duties; that the changes were merely colorable and that they were made for the purpose of permitting the fire commissioners to remove some or all of the occupants of the positions in question and substitute-others in their places. I
It is idle to say that the relator has not been removed from his position. A copy of the resolution quoted was served upon him by the clerk of the board, accompanied by-a letter of notification that his services as a member would not be required after February 1, 1904. He reported for duty to the chief engineer on the morning of February first, and was told that his services were no longer required; and his insignia of office were demanded and taken from him. All these things came to the knowledge of the board; and, if they did not expressly ratify them, they impliedly did so by their silence and inaction.
I,therefore, direct that an order be entered for the issuance of a peremptory writ of mandamus, requiring the respondents and, if necessary, their successors in office, constituting the board of fire commissioners, to restore the relator to duty as first assistant engineer of the Elmira fire department, and to reinstate him in his said office, with costs and disbursements to be taxed.
Ordered accordingly.