People ex rel. Thain v. Constable

| N.Y. App. Div. | Jul 1, 1901

Ingraham, J.:

The question to be determined depends upon the application of chapter 821 of the Laws of 1896, re-enacted as section 21 of the Civil Service Law (Laws of 1899, chap. 370), respecting the removal of honorably discharged Union soldiers and sailors from the position of inspector in the department of buildings in the city of New York. That question was presented to this court in the case of People ex rel. O' Connor v. Brady (49 A.D. 238" court="N.Y. App. Div." date_filed="1900-07-01" href="https://app.midpage.ai/document/people-ex-rel-oconnor-v-brady-5187462?utm_source=webapp" opinion_id="5187462">49 App. Div. 238). We there held that the Veteran Act of 1896 applied, and that the respondent was by that act prohibited from removing an inspector in his department who was a veteran, except as provided for in that act. Counsel for the corporation asks us to review our decision in that case upon the ground that sections 646 and 648 of the New York charter (Laws of 1897, chap. 378) were not called to the attention of the court.

Section 646 provides that the commissioner of buildings shall possess and exercise all the powers, rights and duties and shall be subject to all the obligations heretofore vested in, conferred upon or required of the department of buildings or the superintendent of buildings in the city of New York as heretofore constituted. As the superintendent was by the Veteran Act of 1896 restricted as to his power to remove a veteran the power thus conferred was subject to that restriction.

Section "648 detines the duties of the commissioner and provides that he may punish any employee for any neglect of duty, or omission properly to perform his duty, and “ this provision shall not be deemed to abridge the right of said commissioner to remove or dismiss any inspector of buildings * * * from the service of the department at any time in his discretion.”

We do not think that this provision was intended to override the sweeping restriction in relation to the discharge of a veteran imposed upon all public officers by the Veteran Act, the evident intent being that the provision of the charter shall not prevent the superintendent of buildings from removing or dismissing any inspector of buildings, or other employee appointed by him. There is nothing in this provision that would take away from veterans in the employ of the department of buildings the protection that is afforded to veterans in the other municipal positions. This provision of the charter was a re-enactment of a provision (§ 43) contained in the act of 1892 (Chap. 275) which reorganized the department of buildings in the city of New York; and its re-enactment as a provision of the charter indicated no intention on the part of the Legislature to repeal or modify the provision of the Veteran Act, or to take out of the operation of that act positions in this department which, when the charter was adopted, were clearly governed by its provisions; and by re-enacting this provision of the act of 1896 giving to veterans the protection against removal in the general law relating to the civil service of the State and cities (Laws of 1899, chap. 370) all officers having the power of removal of employees were subject to this restriction. We think, therefore, that the removal of the relator by the commissioner — the facts as stated in the petition and alternative writ being admitted — was invalid under the Veteran Act in question, and that the relator is entitled to have this removal reviewed by a mandamus ; and that the facts stated in this petition are sufficient to entitle the relator to the relief demanded.

It follows that the order appealed from must be reversed and the demurrer overruled, with leave to the respondent to make a return to the writ, with costs to the appellant in this court and in the court below.

Van Brunt, P. J., Patterson and Laughlin, JJ., concurred.

Order reversed, with costs, and demurrer overruled, with costs, with leave to respondent to make return to the writ upon payment of costs in this court and in the court below.