154 N.Y.S. 403 | N.Y. App. Div. | 1915
The relator was appointed assistant chief clerk in the stock transfer tax bureau of the State Comptroller’s office on July 15, 1913, and continued to hold that position until October twenty-eighth of the same year. On October 14, 1913, Mr. Sohmer, then the Comptroller of the State, applied to the State Civil Service Commission to suspend the rules and, in pursuance of section 15, subdivision 2, of the Civil Service Law (Consol. Laws,
I think it is manifest that any appointment made under the foregoing provisions is exceptional, and that the appointee is thereby taken out of the competitive class, where those holding a similar position ordinarily belong, and that he is pro
Assuming, however, that relator was among the class entitled to notice and an opportunity to explain, if he was not removed for any delinquency on his part, but from motives of economy or because there was no work for him to do, I cannot see that he was entitled to notice. The provision of section 22 of the Oivil Service Law (as amd. by Laws of 1910, chap. 264) requiring notice and that an opportunity be afforded an employee to explain, cannot, in reason, apply where the removal is not in consequence of any delinquency on the part of the employee, but is for some other and sufficient reason. As was said in People ex rel. Moloney v. Waring (7 App. Div. 204, 206): “ ‘ It would be highly absurd to gravely notify him that he is to be removed * * * because of some rearrangement of the force of the department which renders the employment of so many men unnecessary, and to invite a discussion of this matter between the head of the department and his subordinate.’ ” Concerning the grounds of the relator's removal, the record, as I have stated, discloses an unequivocal affirmation on the part of the defendant that relator was discharged because there was no work for him to do and that, if continued therein, relator’s position would be a sinecure; that no one had been appointed to fill the position from which relator had been removed, and no money had been provided for the compensation of any incumbent of such a position. We have repeatedly held that under such circumstances the heads of New York city departments may lawfully remove or suspend employees thereof (People ex rel. Kaufman v. Board of Education, 166 App. Div. 58; People ex rel. Vineing v. Hayes, 135 id. 19; Matter of Griffin v. Williams, 168 id. 63), and I cannot doubt that State officers have similar power. In every case the record
The order directing the issuance of a peremptory mandamus should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.