37 N.Y.S. 848 | N.Y. App. Div. | 1896
Up to the time of his discharge complained of, the relator was an -excise inspector, having been appointed' in 1889. On the 28th day ■of February, 1895, the board of commissioners of excise at a meeting resolved'that the clerk should be and was directed to request the resignation of the inspectors, among whom was the relhtor. It was further resolved at the same time that in case of the refusal of ■any of them to resign as requested, by four o’clock in the after- , noon of that day,' each one who did not resign was dismissed from the service of the. department. A notice of the passage of this .resolution was given to the relator. He was requested to resign, but .refused, and thereupon he was informed that his services were no longer required, and that he should consider himself dismissed, lie brings this writ to review the action of the respondents in ■dismissing him.
It is not seriously contested by the relator but that the position which he occupied was that of a mere employee, and that the power ■of the removal was intrusted to the commissioners to be used practically at ,their discretion. This was the opinion of the' Court of Appeals, with regard to persons holding the same position, as expressed in the case of Gregory v. The Mayor (113 N. Y. 416). Occupying, as the relator did, simply the position of an employee, it is well settled that the respondents, to whom was given the right to employ him, had also the right to remove him whenever they saw fit. (People ex rel. Fonda v. Morton, 148 N. Y. 156.)
But the complaint. of the relator is not so much that he was dismissed by the respondents as that the resolution which they passed, although purporting to discharge him 'if he did not resign, was not in fact sufficient for that purpose. We can see no force in this contention. It seems that undgr civil service rules certain disabilities follow the discharge of one who has been employed in the public service, For that reason, it having been determined by the respondents that the services of the relator were no longer necessary, they desired to relieve him from the disabilities which accompanied the fact of his discharge by permitting him to resign if he saw fit to do so, upon receiving the notice. But their resolution was plain and positive that if he did not resign he was discharged. The action of the commissioners in discharging him was conclusive,
The writ must be dismissed and the' proceedings affirmed, with fifty dollars costs to the respondents.
Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.
Writ dismissed and proceedings affirmed, with fifty dollars costs to respondents.