159 N.Y.S. 641 | N.Y. App. Div. | 1916
The retrial of the issue raised by these mandamus proceedings (See 163 App. Div. 910; 215 N. Y. 451) resulted ina verdict against the relator. At the beginning, and again at the close, of the testimony on the last trial, relator’s counsel moved to direct a verdict in his favor, tin the ground that the charges upon which he had been removed were insufficient, and failed to comply with the civil service laws. This was denied, and relator excepted. After more than two years’ litigation, this was the first challenge to the form and sufficiency of the charges.
In the course of his charge the trial court told the jury: “You are not to try here the sufficiency of those charges. * * * The charges were substantial. The procedure was had in accordance with the Civil Service Law.”
It is settled that the cause assigned for discharge of a civil service appointee must be some dereliction of duty, or some
The district attorney’s charges may be thus summarized:
Being arrogant, dictatorial and disagreeable, both to those above relator, and toward his fellow-employees.
Disobliging, and unwilling to do the work required of him; in particular as to shorthand work, although so qualified.
Making an untruthful statement to the district attorney regarding the 1913 budget.
Not being in harmony with his superiors in office, thereby losing the confidence of his chief, the district attorney. ■
Our statutory remedy by mandamus provides for a demurrer to raise the legal sufficiency of the charges. (Oode Oiv. Proc. § 2078.)
When the return admitted the correctness of the charges as set out by relator the failure to demur has been held to amount to an admission of the formal sufficiency of such charges. (People ex rel. Hanrahan v. Board of Metropolitan Police, 26 N. Y. 316; People ex rel. Ryan v. Bingham, 114 App. Div. 170; People v. Wiechers, 179 N. Y. 469.)
Even if the relator had seasonably raised the question by demurrer,- we are not prepared to hold the charges insufficient. The spirit of the Civil Service Law restricting appointments to an eligible list yet gives the appointing power ample authority to remove for cause. (28 Oyc. 446.) The district attorney was making charges the truth of which was within his knowledge. If a clerk, arrogant, dictatorial and offensive to his fellows, could not be removed for such insubordination, office efficiency would be destroyed. The hearing before the head of the department is not a trial, and the charges preferred need not be as formal as an indictment or a complaint. (People ex rel. Flanagan v. Board Police Commissioners, 93 N. Y. 97.)
I advise to affirm the orders, with ten dollars costs and disbursements.
Jenks, P. J., Carr, Stapleton and Rich, JJ., concurred.
Orders affirmed, with ten dollars costs and disbursements.
