109 N.E. 484 | NY | 1915
The relator was an inspector of masonry and carpentry in the bureau of buildings of the city of New York. The position held by him was in the classified civil service in the competitive class. He was removed from that position by the superintendent of buildings under circumstances which it is not necessary to set forth. Although an alternative writ of mandamus was issued and the issues raised by the return to that writ were tried, it is only necessary upon this appeal to determine whether the superintendent of buildings had the right, with or without cause, to remove the relator from his position. If the superintendent of buildings had *391 the absolute power of removal under section 406 of the Greater New York charter the other questions insisted upon below and argued before us need not be discussed. In determining the question presented we shall assume that the relator was removed without cause and without having been given an opportunity to offer an explanation under section 1543 of the Greater New York charter. The claim of the appellant that the superintendent of buildings had the right to remove the relator is based upon section 406 of the Greater New York charter, as amended, L. 1905, ch. 648. That section so far as material to the matter under consideration provides as follows:
"Each superintendent of buildings shall have power to punish any employee, for neglect of duty, or omission to properly perform his duty, for violation of rules, or neglect or disobedience of orders, or incapacity, or absence without leave, by forfeiting and withholding pay for a specified time, or by suspension from duty with or without pay, not exceeding thirty days, or subject to the requirements of the civil service law remove or dismiss any inspector of buildings or other subordinate appointed by him or by any predecessor in office from the service of the bureau at any time in his discretion. Any officer or employee of or in the bureau of buildings of any borough, or police officer thereto detailed, who shall ask, solicit or accept or receive any money or other compensation for enforcing or for modifying or changing any order or requirement of said bureau shall be guilty of a felony."
The only limitation imposed by this section upon the discretionary power of the superintendent of buildings to remove an employee is that imposed by the Civil Service Law. This limitation has reference to the Veteran Acts and removal for political reasons which have no application to this case. (Civil Service Law, sections
WILLARD BARTLETT, Ch. J., HISCOCK, COLLIN, CUDDEBACK and CARDOZO, JJ., concur; HOGAN, J., concurs in the opinion of SEABURY, J., that section 406 applies to this case, but dissents from the result on the ground that the question was not raised upon the trial or presented to the Appellate Division, and it cannot be raised for the first time upon appeal to this court.
Order reversed, etc.