98 N.Y.S. 492 | N.Y. App. Div. | 1906
The relator presented a petition to the Supreme Court alleging that on or about the 1st day of January, 1902, lie was duly appointed . to the position of superintendent of sewers for the borough of Manhattan, city .of Mew York, by the then president of the said borough; that he thereupon accepted the said position and duly qualified and has duly performed the duties of that position up to the 4tli day of January, 1904; that on the 4th. day of January, 1904, the relator was ejected from the said position by persons claiming to act under the authority of the new president of the borough of Manhattan of the city of Mew: York, the defendant in this proceeding ; that in the office of the president of the borough ■ of Manhattan there is the office of the commissioner of public works and that in the office of the commissioner of public works there" were and had been at all times in the petition mentioned numerous bureaus, among which was the “ Bureau of Sewers; ” that there was a chief of said bureau of sewers who" Was designated as the “ Superintendent of Sewers ; ” that no charges had ever been preferred against the relator, nor was hé allowed an opportunity of making an explanation concerning his removal, and that such removal
I do not think that the present incumbent of the position appointed to fill the position from which the relator was removed is'a necessary party to this proceeding to reinstate the relator. While it may be that the present incumbent could be made a party as interested in the result of this proceeding, his presence is not at all essential to a complete determination of the question at issue between the relator and the defendant, the appointing officer. If the relator’s removal was illegal, the final order reinstating him would be a command to the appointing officer; but the relator could obtain no relief in this proceeding against the person who has been appointed to the position from which he had been removed.
A case in which a veteran applies for a mandamus, where a summary proceeding by way of mandamus is given where he has been denied his right to priority of appointment, does not apply to a case like the present; for in such a case there was a vacancy to which an appointment was duly made, in violation of the right of a veteran to priority to appointment; and in determining the question there is involved the right of the appointee to the position to which he 'had been appointed ■— and in such a proceeding the appointee is entitled to be heard. But in this case the relator was duly appointed and in office. If his removal was illegal, he has never been deprived of his office, and this application is to enforce his right fo continue in the office from which he was illegally removed. The person appointed in his place, if he was illegally removed, has no right to the office and never had a right tb it. If the relator’s contention is correct, he still holds the position and is entitled to its emoluments, and this proceeding is to enforce that right. With the validity of the appointment of the person who has taken his place, he has no concern. (See People ex rel. Corkhill v. McAdoo, 98 App. Div. 312.)
The second question is as to whether the alternative writ states
The relatoT’s right to reinstatement must depend upon his holding the • position of the head of a- bureau within this section of the charter. The alternative Writ alleges that on or about the 1st day of January, 1902, the relator was duly appointed t.o the position of superintendent of sewers of the borough of Manhattan, city of Hew York, by the then president of the said borough, thereupon accepted the said position and duly qualified; that “ in the office of the President of the Borough of Manhattan there is- the office of the Commissioner of Public Works, and that in the office of the Commissioner of'public Works, there are, and have been at all the times hereinafter mentioned, numerous bureaus, among which is the ‘ Bureau of Sewers; ’ • that there is a chief of said ‘ Bureau of Sewers ’ and said chief is designated as .the 1Superintendent'of Sewers;’”' and then follows a statement as to the duty of the relator as such superintendent. . , '
- This provision of the charter, :sd far as it relates to the head of a bureau, was included in the charter of 1873 (Laws of 1873, chap. 335, § 28), in the Consolidation Act (Laws of. 1882, chap. 410, § 48) and in the New York charter of 1897 (Laws of 1897, chap. 378, § 1543) in substantially the same form. as. in the present charter. By each of those charters certain bureaus were expressly created, hinder the charter of 1873 (Laws of 1873, chap. 335, § 28) no regular clerk or head of a bureau could be. removed “ until he has been informed.'of the cause of.the proposed removal, and has been allowed an opportunity of making an explanation,” and it. was held by the
I think the judgment appealed from should be reversed and the demurrer sustained, with fifty dollars costs and disbursements.
O’Brien, P. J., and Clarke, J., concurred; Patterson and Laughlin, JJ., dissented. -
Judgment reversed and demurrer sustained, with fifty dollars costs and disbursements. Order filed.