78 A.D. 373 | N.Y. App. Div. | 1903
The petitioner was appointed to the position of a regular clerk in the department of taxes and assessments on the 9th day of September, 1898, from an eligible list after having passed a civil service examination. The position is still classified by the municipal civil service commission as subject to competitive examination. On the 11th day of April, 1902, he was notified in writing by the chief clerk of the department by direction of the commissioner of taxes and assessments that he was “ discharged from the position of clerk ” in the department “ for the reason that your services are unnecessary — said discharge to take effect May 1, 1902.” He received no other notice and was afforded no opportunity to make any explanation. Ho other ground of removal was filed in the department. His affidavit shows that no statement showing the reason for his removal was filed in the department or with the municipal civil service commission. The affidavit of the president of the board of taxes and assessments shows that the petitioner was discharged “ in good faith, for reasons of economy, because his services were not needed and for no other reason; ” that on the 7th day of April, 1902, the board of estimate and apportionment transmitted to the board of tax commissioners a resolution calling upon the heads of all departments to reduce their payrolls not less than ten per cent by dismissals, aboli
Counsel for the petitioner insists that, under section 1543 of the charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466), the relatoz-, holding a position in the classified municipal civil service, could not be removed without notice and an opportunity of making an explanation. This is undoubtedly so. Formerly where, in good faith, the position was abolished or made unnecessary for reasons of economy, the employee was removed; and, since no explanation by him could be of any avail, he was not entitled to notice or an opportunity to explain. (Phillips v. Mayor, 88 N. Y. 245 ; Langdon v. Mayor, 92 id. 427; Lethbridge v. Mayor, 133 id. 232; Matter of Kenny, 52 App. Div. 385; People ex rel. McCarthy v. Shea, 51 id. 227; affd., 164 N. Y. 573; Donnell v. Mayor, 68 Hun, 55; Kelly v. Mayor, 70 id. 208.) It was further held that neither under the charter of New York nor under the Civil Service Law (Laws of 1883, chap. 354, § 13) as amended by section 3 of chapter 186, Laws of 1898, was it necessary, in case of the abolition of the position in good faith and for economic reasons, to file a statement showing the grounds of the removal, for the z-eason that the statute requiring the filing of such statement was inapplicable to such removal or termination of employ
It will be observed that the affidavit of the president of the board of taxes and assessments clearly shows that the position held by the relator was either abolished or that the number was reduced; consequently his case falls within the provision of the statute quoted. By analogy, I think, the decisions previously made, holding that where the removal was for causes of this nature the employee was not entitled to notice, are applicable to the case at bar. In such case now the employee is not removed. By operation of law the petitioner was suspended without pay, and his only right was to have his name certified to the civil service commission for reinstatement when necessary in accordance with this provision of law. Inasmuch, therefore, as he could not be removed in these circumstances, it would seem to follow that the provision requiring a statement of the grounds of removal to be filed would also be inapplicable. It appears by the notice that was sent to him that he was in form removed. This practice was wrong and should not be followed in the future. Entry should have been made on the records of the office and a notice sent to the municipal civil service commission that he was suspended without pay in accordance with the provisions of section 1543 of the charter, and, although the statute does not expressly require it, the reason for such suspension without pay should have been definitely stated, so that it would clearly appear that it was a suspension authorized by the statute. The statute does not seem to require any express notice to the employee in such case; but he should be at least informed of the action taken, and it would be well to adopt the practice of giving him a formal notice to the same effect as that required to be given to the municipal civil service commission to the end that he
Van Bkttnt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.
Order reversed and alternative writ awarded, without costs.