127 N.Y.S. 554 | N.Y. App. Div. | 1911
The relator is seventy-two years of age, and he entered the department of correction as a clerk, that being a position in the classified civil service of the city of Yew York, on the 10th day of February, 1896, after having passed a civil service examination. He continued in that employment until the 1st day of August, 1903, when he was appointed purchasing agent of the department after having likewise passed a civil service examination for that position, which was also in the classified civil service. During these fourteen years of service in the department of correction the relator has performed his duties diligently, fairly and honestly and has often been required to work overtime. His duties were onerous and so increased that for the year 1910 the commissioners, by including an item in the budget, asked for an assistant for him, which request, however, was not granted. He is an honorably discharged soldier of the Union army and was, therefore, b,y the express command of the Legisla
On certiorari to review the removal of members of the department of tire of the city of Hew York, it has also been held that a single error of judgment is not sufficient to warrant removal for incompetency. (People ex rel. MoCabe v. Fire Comrs., 43 Hun, 554; People ex rel. Croker v. Sturgis, 91 App. Div. 286,296.) In People ex rel. MoCabe v. Fire Comrs. (supra) the. court said:' “ The man is yet to come who, in all emergencies, has not blundered, whether he be lawyer, juror or judge, major-general, minister, governor, crowned head or president! And while the error committed has demonstrated that as to the particular subject a failure to deal with it properly could not be denied, it has not been regarded as evidence of incapacity to discharge the duties of the position held or to command. * * * A single error of judgment by him, assuming one to have been committed, * * * is not sufficient evidence of the relator’s incapacity to warrant his removal.” It is, of course, possible that a single negligent act in the light of the attendant facts and circumstances may constitute such a serious failure of duty as to show incompetency; but it is at least doubtful whether the neglect with which the relator was charged affords evidence of incompetency which would justify removal under the statute which we have quoted, and in the view we take of the case we do not deem it necessary to express a decided opinion on that point at this time. It was clearly competent for the Legislature' in recognition of the services to the State and to the nation performed by veterans, to enact this legislation to secure them in the positions which they occupy in the public service. The Legislature not only conferred the rights upon the veterans, but it has
, If there be more than one charge and all have been sustained, and the sentence or punishment be so severe as to indicate that guilt on all charges has been considered, when guilt on one or more of the charges is not established by a preponderance of the evidence, the court will annul the determination and direct a rehearing on the charges as to which the evidence is sufficient. (People ex rel. Reardon v. Partridge, 86 App. Div. 310, 315. See, also, People ex rel. Classon v. French, supra.)
An examination of the charges and of the evidence, in the light of these principles, convinces us that the determination should be annulled. There is no express charge of incompetence or misconduct, and the letter notifying the relator that the charges had been sustained and that he had been removed indicates that the commissioner proceeded on the theory that the relator was only entitled to an opportunity to explain and not with a view to complying with the requirements of the statute relating to the rights of veterans, although at the commencement of the hearing the commissioner appears to have recognized the rights of the relator as a veteran. The formal specific charges served upon the relator are as follows : “ The Mayor of Mew York City has called my attention to a purchase made by you, which seems irregular, and charge is hereby made against you, the specification of which is: That, on or about March 25th, 1910, order was given by you to the Kenney Manufacturing Company for ‘ one dozen 1’ iron valve wheels at $1.50 each
“ Sir : The Comptroller calls my attention to a bill against your department dated March 25th by the Kenney Manufacturing Company for one dozen 1-^ iron valve wheels at $1.50 each, total $18.00. He has sent out" in the market and is able to buy them freely at 6 cents apiece. Yon will please forthwith put on tidal the purchasing agent J. C. Long, and the prison warden Peter A. Mallon who certified to the correctness of the order and the bill, and dismiss them from the department summarily unless you can bring to me some good reason to the contrary.
“ The thing seems to be very scandalous, and I am not able to perceive the slightest excuse for it. Anyone looking at the little iron wheel about four inches in diameter would know that it could not cost $1.50. Meanwhile I shall expect you to look over your entire department and see if such things are not occurring everywhere. Such .miserable thievery has to be got rid of in some way.
“ Very truly yours.”
This official communication left no discretion to the commissioner. He was not at liberty to investigate the matter and to then take such action as the facts might warrant, but he was commanded to put the relator on trial forthwith and as might be expected he proceeded to do as directed. On receipt of this letter from the mayor he immediately suspended the relator and prepared and served formal charges on him the next day which charges were necessarily triable before himself. The charges were based on the mayor’s complaint. The facts developed on the hearing clearly show that there was no thievery in connection with ordering this material and there was nothing to give rise to a scandal, although doubtless as the matter was presented to the mayor the inferences which he drew in that regard then seemed warranted and he was actuated by the com
It might well be expected in the circumstances that the letter from the mayor would influence the action of the commissioner to the prejudice of the relator and we are of opinion that it did, for it is improbable that a veteran with the record and experience of the relator would have been removed under charges involving, in a sense, his integrity for a single error in the performance of his duty as disclosed by the evidence. The respondent, so far as the record discloses, conducted the trial with perfect fairness, but it is probable in view of the peremptory order of his superior officer that he thought that a removal was required on proof of the fact that the relator gave the order.
The relator had charge of purchasing material and supplies for the department and on March 3, 1910, he received a'requisition in writing from the general storekeeper, duly certified by the warden of the Fourth District Prison, for the purchase of one dozen one and one-half iron valve wheels for use on "one and one-half Globe valves, it being stated in the requisition that they were “ to repair Kenney Flushometer” by substituting the iron valve wheels in place of handles. With the requisition he received a letter addressed
The return shows'that the respondent found the relator guilty as charged and since it also shows that the mayor’s letter constitutes part of the charges it is left open to the inference that he has found relator guilty on the ones specified in that letter as well as those specified in his formal charges although doubtless such was not his intention. In his letter dismissing the relator the respondent states that he has found that the charges are sustained and that the relator has been “ guilty of misconduct, neglect and incompetency,” and he then specifies the acts constituting the misconduct, neglect and incompetence, as, issuing the order for iron wheels after he had arranged with Barnum to supply nickle-plated wheels without consulting with the warden who had made the requisition, and at one dollar and fifty cents each, when iron wheels could have been purchased at from six to fifteen cents each. As already observed, there was here no misconduct, and the determination that the relator was guilty of misconduct is not warranted by the evidence.
It follows, therefore, that the writ should be sustained, the determination of the commissioner annulled, and the relator reinstated, with fifty dollars costs and disbursements.
Inoraham, P. J., Clarke and Scott, JJ., concurred; Miller, J., dissented.
Writ sustained, determination of commissioner annulled, and relator reinstated, with fifty dollars costs and disbursements. Settle order on notice.