45 N.Y.S. 519 | N.Y. App. Div. | 1897
Lead Opinion
'Down to the 25th of May, 1896, and for several yéars before that time, the relator was a regular clerk in the office of the commissioners of parks of the city of New York. On that day he was removed by a vote of the commissioners of parks. He has sued out this writ of certiorari to review their proceedings so removing him, alleging that the rights assured to him by the statute were not protected, and for that reason their proceedings should be reversed.
The relator, being a regular clerk, could not be removed until he had.been informed of the. cause of the' proposed removal, and had been allowed an opportunity of making an explanation. (Laws of 1882, chap. 410, § 48.) The relator seems to suppose that this statute gives him the right to a, trial, but in that supposition he is entirely mistaken. The statute makes no provision for a formal trial. It does not require that witnesses should be produced or that the officer should be permitted to cross-examine them, or that he should be allowed to produce witnesses or be heard as upon the trial. (People ex rel. Keech v. Thompson, 94 N. Y. 451.) The wording of the statute necessarily implies that the commissioners propose to remove the clerk unless the explanation which -he is called upon to give shall be a satisfactory one, and that involves necessarily the fact that, to a certain extent, they have determined already upon his case.. They are not required to take testimony to enable them to do this, but they may act upon théir own information which has been procured from time to time in the performance of their official duties. (People ex rel. Mitchel v. La Grange, 2 App. Div. 444.) All that is required of the officials to comply with thi.s statute is that the right of explanation assured to the clerk by virtue of it shall be' given to him in good faith; that he shall be informed of the nature of the charges against him and of the facts so far as may be necessary to enable him to give an explanation of them. When that has been done his rights have been preserved. If, as the result of the explanation, it is - fairly to be assumed that the cause of complaint against him was some dereliction or general neglect of duty affecting his fitness for the office, the commissioners are justified in removing him, unless the explanation is one which a reasonable man ought to accept as satis
Williams and Ingraham, JJ., concurred; O’Brien and Parker, JJ., dissented.
Dissenting Opinion
As shown by the petition and return, from September, 1878, until May 31, 1896, a period of over seventeen years, the relator was a clerk of the board of parks. He commenced at a salary of two dollars a day, and was finally receiving $2,000 per annum. After several requests to resign, the relator received a letter from the president of the board, as follows:
“ New York, May 16th, 1896.
“ F. H. D. Mason, Esq.,
“ The Arsenal:
“Dear Sir.— I have recommended to my colleagues in the Park Board your discharge from the department as clerk on account of general inefficiency and neglect of your duties, the payment of exorbitant prices for supplies, carelessness in the audit of bills and the purchase of inferior articles. If you desire it, you will be given a hearing before the Board at its meeting on Monday next, at 4 o’clock. “Yours very truly,
“ S. Y. R. CRUGER,
“President.”
In reply the relator wrote: “ I am in receipt of your notification, dated May 15th, of your intention to recommend my discharge to your colleagues, and stating if I desired a hearing would be given me. I would respectfully request that the opportunity be so-granted.” Thereupon the president wrote to the relator : “ I am in receipt of your letter of the 18th inst., in reply to mine of the 15tli, stating that you desire an opportunity to be heard before the Board. We should have given you that opportunity to-day, but owing to the unexpected absence of Commissioner McMillen it was decided to postpone the matter until Monday afternoon next, 25th inst., at 4 o’clock, when you will be.given an opportunity tobe heard.”
On the twenty-fifth of May the relator appeared before the board with his answer. The president read his letter of May fifteenth, and
The reading of the relator’s answer ended the hearing, and the return . shows that at once- upon its termination, the relator not being present, the following was entered upon the minutes : “ E. H. D. Mason, clerk, appeared before the board and was heard in answer to charges of general inefficiency, neglect of duty, payment of exorbitant prices for supplies, carelessness in comparing and passing on bills for payment, and the purchase of inferior articles.” On the same day, at the same meeting, the relator not being present, by resolution of the respondents, the relator was discharged from the , service, to take effect May 31, 1896.
The validity of the proceedings which resulted in the relator’s ■ dismissal is before us for review. The charges, though general,
And as said in People ex rel. Mitchel v. La Grange (2 App. Div. 444): “ ‘An explanation may consist either of excusing any delinquency or apparent neglect or incapacity—: that is, explaining the unfavorable appearances or disproving the charges.’ To do this efficiently the accused must not have to, grope in the dark. He should know not only the technical charge, but upon what, in fact, it is based. It is apparent that to enable the accused thus to explain, he must be apprised not only of the general charge, but of the specification. He must know, too, whether his explanation should be addressed to removing some personal misunderstanding of the commissioners, or to dissipating unfavorable appearances stamped upon their minds by inaccurate information or by a mistaken view of accurate information.”
Here the charges were most general in their nature; and what the relator asked and wliat wé think he was entitled to before being. called upon for an explanation, or before he would be in a position. to give ■ an explanation, was some specifications. None,, however, was furnished, unless it be the statement read by the president upon the hearing, which, even if it be regarded as sufficient, is not now material, because the relator never saw it until this return was made. It was produced upon the hearing, it is true, for the first time and read, a.nd the only knowledge of its contents that the relator ever
■ In our view, therefore, it clearly appearing that the right which . the relator had of explanation was not accorded him, the proceeding should be annulled and the relator reinstated, with costs.
Parker, J., concurred. .
Writ dismissed, with costs.