91 N.Y.S. 1032 | N.Y. App. Div. | 1905
The relator was removed by the commissioner of the department ■of correction of '.the city of New York after a trial upon specified, charges. The position which the relator held is within"' the classified civil service of the city of New York' and subject to competitive > examination. After.. having passed the civil service, examination the relator was. appointed a keeper in the department of correction upon the 30th day of January, 1897. On the 17th day of 'September, 1903,-charges of disobedience of Orders and absence without leave were preferred by 'respondent against the relator. Pursuant to the provisions of section. 1543 of the Greater New York charter (Laws of 1901, chap. 466), the relator was accorded an opportunity to explain, and after offering such excuse'as,hezhad in answer to the-charge • the respondent adjudged him guilty of the charges and removed him from his position. Thereafter the relator sued out á writ of certiorari to review the action thus taken., Before suc'hproceeding was brought to a hearing, however, he was reinstated 'by'the respondent on the 15th day of October,-' 1903, and again ", assigned to duty. On the next day the same charges were again preferred in writing and served upon the relator, upon, which he was thereafter accorded a. trial.
It is claimed upon this appeal that the first proceeding in which the relator was accorded an opportunity to explain constituted a bar and estoppel to the institution of the proceedings upon which he was tried and removed. And it is further claimed that the relator was an honorably discharged soldier from the service of the United ¡States army and that he could not be removed from his position except for incompetenev or misconduct shown after a hearing upon due notice upon stated charges, pursuant to -the provisions of section 21 of chapter 370 of the Laws of 1899. If the latter contention be correct, then the former proceeding was a nullity and did not operate either as a bar or an estoppel to a proceeding instituted as required by the provisions of the statute. The proof adduced upon the trial shows, that the relator, while an honorably discharged .-soldier, did not -serve in the War of the Rebellion or in the Spanish war as a soldier. By the provisions of chapter 270 of the Laws of 1902 section 21 of chapter 370 of the Laws of 1899 was' amended by omitting from the section the clause, “ or is an honorably discharged soldier, sailor or marine of the regular army or navy of the United States.” This left the protection accorded to army , veterans limited in its application to soldiers who had served either in the Civil or Spanish war, and as the relator fell within neither of these classes, and not being embraced within any of the other classes specified in the section, he was without any protection on that
It follows that the writ of certiorari should be dismissed and the •proceedings affirmed, with costs to the respondent.
Yan Brunt, P. J.,- Patterson, O’Brien and Laughlin, JJ., concurred.
Writ dismissed and proceedings affirmed, with costs.