83 N.Y.S. 800 | N.Y. App. Div. | 1903
The relator appeals from an order of the Special Term confirming the decision of a referee upon the trial of an alternative writ of mandamus dismissing the writ..... The relator was a salaried food inspector in the department of health of the city of Hew York. In 1898. the said department submitted its estimate for the ensuing year to the board of estimate and apportionment. The estimate -specified many of its subordinates, including the relator, with their respective salaries. The department asked an appropriation for these salaries of $163,000. The board of estimate and apportionment' allowed' $137,000 for salaries and $14,000 for medical school inspectors, making' a total appropriation for salaries of $151,000. Thereupon, and at the close of 1898, the board of health for its ■department adopted a resolve dispensing with the services of twenty-five of its subordinates, including the relator, from and after December 31, 1898, “ for the reason that the appropriation for salaries for the year 1899 is insufficient.” The relator received formal and •official notice of such action.
It was the duty of the department to curtail expenses so as to keep them within its appropriation. (Greater N. Y. Charter [Laws of 1897, chap. 378], § 1542.)
I think that the rélator was not entitled to any further opportunity of explanation. He was not a regular clerk or head of a bureau, and, therefore, was not’ within the purview of section 1543 of the •charter. He was not protected by section 13 of chapter 354 of the
The variance between the allegations of the return and the finding of the learned referee is that of words and not of substance. The return reads: “ Thatthere was no money appropriated by the Board of Estimate and Apportionment of the City of Hew York for the payment of the services of the petitioner, and that at the time of the removal of the petitioner there was no money with which to pay for any services that he might render, and because of .-such lack of appropriation, and lack of money said Board of Health •dispensed with the services of the ’petitioner.” The decision is that the head of the department had the right “ to dismiss the relator ■from his employment by reason of the diminished and insufficient salary appropriation for the year 1899.” If the salary appropriation was “ diminished and insufficient,” that was due to the fact that “ no money ” liad been “ appropriated ” by the board of estimate to pay ■.the salaries of all of its then employees. As to those discharged, •then, for lack of departmental funds, there was no money appropriated to continue them in salaried positions. The return and the •decision present the same idea, namely, dismissal because the’ diminished appropriation required it. There is no indication that the •reason stated was sham. The board of health placed the relator in its estimate, and asked an appropriation which included his salary. The board of estimate and apportionment cut down the appropriation. This required a reduction of the salaried force, or a general reduction of salaries. The department was not required to scale ‘down the salaries in order to retain all of its employees. In its discretion in internal administration the board dismissed twenty-five employees, including the relator. It merely took a necessary step .toward economy, required by the action of the appropriation branch .■of the city government. Further, none has ever been appointed in
The order should be affirmed.
Bartlett, Woodward, Hirschberg and Hooker, JJ., concurred..
Order affirmed, with costs.