100 N.Y.S. 728 | N.Y. Sup. Ct. | 1906
This is a motion by the relator for a peremptory writ of mandamus. The application is made upon a verified petition and is met by the answering affidavits submitted.
The relator has presented a replying affidavit having for its object the controverting of certain allegations contained in the answering affidavits. The counsel for the defendants has objected to the receipt and consideration of the replying affidavit. His objection is well taken and must be sustained. The Code (§ 2070) requires that a copy of the affidavits, setting forth the facts upon which the right of the relator to the writ depends, must be served with the notice of motion or
The relator alleges that he was appointed a foreman in the bureau of highways at a salary of four dollars per day, after having passed the physical and practical examination prescribed by the municipal civil service commission; that he continued in such position until December 30, 1905,' when he was suspended or laid off from said position and has since been refused employment by the defendant Hicks, superintendent of said bureau; that he is an exempt volunteer fireman, having served the period required by law prior to his appointment as aforesaid; that the termination of his services was made by the superintendent of highways of the borough without any charges having been preferred against him and without any hearing being granted or an opportunity given to make an explanation, or without any cause whatsoever, and that no statement showing the reasons or grounds for his removal or suspension was filed with the municipal civil service commission of the city of Hew York; that the said position has not been abolished.
The answering affidavits submitted by the defendants allege that, on December 30, 1905, the position held by the relator was abolished by the former borough president, and relator’s name was thereupon duly transmitted to the municipal civil service commission and was entered on the preferred list of the commission as a person eligible for further appointment to the same or a similar position, and still remains on said list; that, since the defendant Bermel became incumbent of the office of borough president, relator’s services have not been found necessary in the bureau
The relator’s case rests upon the incontrovertible allegagations of his petition and the statements contained in the answering affidavits. The material statements of the latter must be taken as true. As to any disputed questions of fact the answering affidavits are conclusive. Haebler v. New York Produce Exchange, 149 N. Y. 414.
It is, therefore, an established and incontrovertible fact that on December 30, 1905, the position of the relator was abolished. Hence it is not material that the position was lost to him without compliance had with the provisions of section 21 of the Oivil Service Law (Laws of 1899, chap. 370, as amd.), for he was not removed from his position or employment; that the position was abolished for sufficient reasons must be accepted as a fact, for every public official is presumed to act in the line of his duty and in the public interests. It is not essential that it be shown that economic reasons alone influenced official action, for the statute contemplates that it may be that the position held by a veteran or volunteer fireman may “ become unnecessary or be abolished for reasons of economy or otherwise.” Oivil Service Law, § 21, supra. A position may be abolished for good and sufficient reasons without giving notice to the occupant or affording him an opportunity to explain or without a formal hearing upon charges, if it be done in good faith and in the public interest. Jones v. Willcox, 80 App. Div. 167; Matter of Breckenridge, 160 N. Y. 103; People ex rel. Chappel v. Lindenthal, 173 id. 524.
In the case at bar, it is not alleged that the position held by the relator was abolished in bad faith and it must be presumed to have been done for valid and sufficient reasons. The relator cannot successfully invoke, on this application, that provision in the section of the Oivil Service Law above
Relator’s name has been duly certified to the municipal civil service commission and placed upon the list of suspended employees for preferential re-employment in the service of the city, as provided by section 1543 of the revised charter, and, under the facts as made to appear by the record , in this case, no other course was required or permissible.
It follows from the foregoing that the relator’s motion for a peremptory writ of mandamus must be denied.
Motion denied.