62 N.Y.S. 682 | N.Y. App. Div. | 1900
This is an appeal from a final order granting a writ of mandamus requiring the respondent to forthwith restore the relator to duty in the public service in the fire department in the city of Hew York, and to assign him to duty like or similar to that performed by him as assistant secretary of the fire department of the city of Hew York ■ at the time of his removal. The relator was an honorably discharged soldier of the United States army in the late Civil war, and on July 25, 1873, was appointed a clerk in the fire department • of the city of Hew York and continued in such employ down to April 1, 1898, at which time he was performing the duties of assistant secretary, having been appointed to that' position May 16, 1892. On April 1, 1898, he received a notice from the fire commissioner as follows:
“ The position of Assistant Secretary in this Department, Borough of Manhattan, is hereby abolished from 4 o’clock this P. M.; and the services of John R. Shields, the incumbent thereof, no longer required.”
By chapter 184 of the Laws of 1898 the Veteran Act (§ 1, chap. 119, Laws of 1888) was1 amended by adding the following provision: “ And in cities of the first class, if the position so held by any'such honorably ■ discharged soldier, sailor or marine or volunteer fireman, shall become unnecessary or be abolished for reasons of economy or otherwise, the said honorably discharged soldier, sailor or marine, or volunteer fireman holding the same, shall not be discharged from the public service, but shall be transferred to any branch of the said service foi’ duty in such position as he may be fitted to fill, receiving the same compensation therefor.” And it is alleged in this proceeding that' the fire com
The case came on for trial before the court at Special Term when a trial by jury was waived, and the issue raised by the alternative writ and return thereto was tried before the judge at Special Term. By this decision he found that the relator was unlawfully discharged.by the defendant from the position held by him; that such discharge was prohibited by the express terms of chapter 184 of the Laws of 1898, the relator being a veteran in the United States army in the Civil war, and he was directed to be reinstated in .the public service. Upon the evidence it appeared that the services that were performed by the relator were mainly clerical, acting under the secretary; that it was his duty to prepare papers for the action of the board; to make the proper disposition of the papers of the board and prepare them for'filing ; to prepare forms ■ of contracts preparatory to their going to the corporation counsel for approval; to prepare or edit the annual report to the mayor ; prepare advertisements for contracts, examine returns or reports of officers in relation to firemen who were appointed on probation and to prepare orders of removal and appointment. The salary of the relator was $3,000 a year.. On the day of his removal one Reilly was appointed purchasing agent, and one Graham", who prior to that time had been acting as purchasing agent, was sent for by the respondent and was asked if he could not do much of the work that Shields, the relator, had been doing. Graham replied that he was familiar with it and could, but that he did not want to have any position in that department at the expense of Mr. Shields. To that the respondent replied that Shields would have to go any way. There was some little talk of his being a veteran. Immediately after the relator’s removal and upon the appointment of Reilly the commissioner told Graham to prepare the form of contracts and advertisements and to edit the annual report for the mayor, services which had been performed by the relator; and from that time on Graham ceased to perform any services as purchasing agent, and Graham performed part of the duties which had been before performed by the relator. Subsequently, and on the fith or '8th day of June, 1898, one Anthony Eickhoff was appointed
It is quite apparent from a consideration of the services performed by these two officers, one appointed upon the day of the relator’s removal, and the other less than two months thereafter, that the services that were performed by them could have been performed with equal satisfaction to the public service by the relator. Graham was superseded as purchasing agent in order that he might perform a portion of the duties performed by the relator, and Eeilly was appointed in his place as purchasing agent; and shortly afterwards EickhoS was appointed to perform duties which certainly could have been performed by the relator, and the salary of these two appointees was in excess of that paid to the relator. The commissioner, in his testimony, testified that the relator was a very good man and had the ability to do the same work as fell upon Eickhoíf; that lie (the relator) had covered the same ground. Upon these facts, what was the duty of the fire commissioner, under this provision of the statute, before cited ? The law directed him that if •the position held by .any honorably-discharged soldier should become unnecessary, or be abolished for reasons of economy or otherwise, the honorably-discharged soldier holding the same should not be' discharged from the public service, but should be transferred to any branch of the said service for duty in such position as he might be fitted to fill, receiving the same compensation therefor. This statute was binding upon the fire commissioner, and it was his duty to comply with it and it is our duty to enforce it. He had no power “ in good faith” to violate the law by displacing a veteran and substituting another in -.his place. If the position of assistant secretary became unnecessary and was to be abolished, the officer holding that position, being a veteran, was not to be discharged from the public service, providing there were other positions in the department the duties of which he could perform. That there were such positions appears from the fact that, upon the day he was discharged, Eeilly was appointed, and shortly afterwards Eickhoff was appointed; and the result of the discharge of the" relator appears simply to have be¿n to shift the' officers who performed certain duties so that the
Matter of Breckenridge (160 N. Y. 103) was an application for a peremptory writ of mandamus, and the application was denied because the relator had failed to show that any position had existed which he might fill where the compensation was the same. All that the court in that case held was that.the “law is capable of a reasonable and perfectly fair construcution, under which the veteran who loses his office through its abolition is not to be discharged from the public service, if there is in any branch of that service a position with equal emolument which he is qualified to fill;’’ that “ their beneficent scope cannot be enlarged to accomplish a purpose which would work injustice, either to the municipality in saddling upon it unnecessary officials or to persons in office, whose only cause for removal would be that their places were wanted for veterans.” In this case it is evident that the relator’s position was wanted for others who were appointed to perform the duties that he had performed or was capable of performing, and we think his removal was in violation of the provisions of the statute.
It follows that the order appealed must be affirmed, with costs.
Van Brunt, P. J., Barrett, Rumsey and McLaughlin, JJ., concurred.
Order affirmed, with costs.
