117 N.E. 609 | NY | 1917
This appeal is from an order of the Appellate Division, first department, which unanimously affirmed an order of the Special Term, denying the relator's application for a peremptory writ of mandamus compelling defendants to reinstate him as deputy tax commissioner of the city of New York. The facts set out in the petition upon which the application was based were undisputed. The petition set forth, in substance, that in September, 1900, the relator having taken and passed a competitive examination according to law and the civil service rules, was regularly appointed from the civil service list to the position of deputy tax commissioner of the city of New York and performed his duties as such until January 1, 1916, when the defendants dismissed him from his position without giving him an opportunity of making an explanation as required by section 1543 of the Greater New York charter (L. 1901, ch. 466). Other matters are set forth which it is unnecessary to consider.
The relator contends, and it is upon this ground alone that he bases his appeal, that the writ should have been granted since his dismissal was in direct violation of the section of the charter referred to. This section, after providing that the heads of all departments shall have the power to appoint and remove all chiefs of bureaus, clerks, officers, employees and subordinates in their respective departments, "except as herein otherwise specially provided" contains the following provision: "But no regular clerk or head of a bureau, or person holding a position in the classified municipal civil service *399 subject to competitive examination, shall be removed until he has been allowed an opportunity of making an explanation; and in every case of a removal, the true grounds thereof shall be forthwith entered upon the records of the department * * * and a copy filed with the municipal civil service. In case of removal, a statement showing the reason therefor shall be filed in the department."
The object sought to be accomplished by the provision quoted is obvious. It is to protect persons appointed to a position in the classified municipal civil service, subject to competitive examination, from summary removal. Before such removal can be made the person removed must be given an opportunity of making an explanation. This is a positive requirement and cannot in any case be disregarded. A trial upon specific charges is not necessary, but an opportunity to explain the cause assigned as the basis for the removal must, in every case, be given. The cause assigned must not be a mere whim or caprice of the one clothed with the power of removal, a mere subterfuge to get rid of the person holding the position; on the contrary, it must be of substance, relating to the character, neglect of duty or fitness of the person removed to properly discharge the duties of his position. (Matter of Griffin v. Thompson,
Before determining that question it may be well to dispose of the suggestion of the corporation counsel to *400
the effect that the order of the Appellate Division must be affirmed since it does not appear therefrom that the relator's application was denied as a matter of law, and since that fact does not appear in the order it must be assumed it was denied in the exercise of the discretion vested in the Supreme Court. This contention has for its support the general rule. (Matter ofWinters v. Prendergast,
It is strenuously urged on the part of the corporation counsel that the writ was properly denied because the relator was not entitled to the protection of the section of the charter above quoted. His contention in this respect is that the relator was not a clerk, head of a bureau, or holding a position in the classified municipal civil service subject to competitive examination. He certainly was not a clerk or head of a bureau, but I think he did hold a position in the classified municipal civil service subject to competitive examination, and for that reason could not be removed until he had been *401
afforded an opportunity to make an explanation. He was appointed from the civil service list after a competitive examination and the word "position" does not seem to me to denote, as contended by the respondent, a subordinate place. It is defined in section
The order appealed from should, therefore, be reversed, and application of the relator granted, with costs in all courts.
HISCOCK, Ch. J., CHASE, COLLIN, HOGAN, CARDOZO and CRANE, JJ., concur.
Order reversed, etc.