48 N.Y.S. 796 | N.Y. App. Div. | 1897
Lead Opinion
The relator applied to the court for a peremptory writ of mandamus commanding the fire commissioners of the city of New York to cancel 'the appointments of certain assistant foremen in the fire department in the city of New York, “and to promote this deponent (the relator) as assistant foreman in said department.” From the affidavits upon this application it appeared that the New York city civil service board held an examination of applicants for promotion in the fire department on February 20, 1896, under the rules of the board, and on the 28th and 30tli days of March, 1896, and that as a result of such examination the relator received a rating of eighty-two and forty-two one-hundredths per cent. The civil service board, in making up an .eligible list for these appointments, did not place the relator upon such list, although it would appear from the facts stated that the relator was entitled to have his name placed thereupon.
Under regulation 16 of the civil service, with reference to promotions in the uniformed force of the fire department, it is provided that, whenever a vacancy shall occur within any grade in certain schedules specified, which, in the opinion of the appointing officer, shall be filled, such appointing officer shall notify the secretary of the New York civil service board of such vacancy, and that the secretary thereupon shall certify to the appointing officer, for promotion from the eligible list, the three persons having the highest standing, indicating such of them, if any, as have been honorably discharged from the military or naval service of the United States in the late war. It appears that on January 3,1896, there existed in the uniformed force of the fire department ten vacancies in the rank of assistant foremen, which, in the opinion of the board of fire commissioners, the public business required to be filled; that on that day
The respondents upon this appeal had duly complied with the law; had notified the secretary of the civil service board of the vacancies to be filled, and had received from such board a list of those eligible to fill such positions. Acting upon that information from the board, the respondents appointed those specified by the board as eligible for the positions. Those persons thus appointed became members of the uniformed force of the fire department in the positions to • which they were appointed, and could only be removed from such positions as provided for by section 440 of the Consolidation Act (Chap. 410 of the Laws of 1882). It is there provided that officers and members of the uniformed force shall be removable only after written charges shall have been preferred against them, after the charges have been publicly examined into, upon such reasonable notice to the person charged, and in such manner of examination as the rules and regulations of the board of fire commissioners may prescribe. No written charges have been preferred against any of these officers mentioned by the relator, and the board of fire commissioners had no power to remove them, except upon a conviction after a trial had upon such written charges.
*218 “ It seems to us clear that this section of the Constitution, read according to its letter and spirit, contemplates that in all examinations, competitive and non-competitive, the veterans of the civil war have no preference over other citizens of the State, but when, as a result of those examinations, a list is made up from which appointments and promotions can be made, consisting of those whose merit and fitness have been duly ascertained, then the veteran is entitled to preference without regard to his standing on that list.”
We think, therefore, that the action of the respondents in acting upon the list sent to them by the civil service commissioners on April 13,1896, was valid and vested the officers appointed with the title to their office from which they could only be removed as required by law; and the subsequent rectification of that list on April 21, 1896, after those appointments had become valid, could not have the effect of making the appointments void, and the officers appointed could only be removed as required by law.
It follows that the order appealed from was right, and it is affirmed, with costs.
Patterson, J., concurred.
Concurrence Opinion
While concurring in the conclusion arrived at by Mr. Justice Ingraham in respect to this application, we do not think that the relator is absolutely remediless, nor that by the mistake of the civil service commissioners the persons who have been improperly appointed because of such mistake by the fire commissioners have an indefeasible title to their position.
We are of opinion that in a proper proceeding brought for that purpose their title to the position could be judicially investigated and if found not to be resting upon a proper foundation the holders of the position could be ousted therefrom in order that a proper ajopointment may be made.
Williams and O’Brien, JJ., concurred.
Order affirmed, with costs.