119 N.Y.S. 808 | N.Y. App. Div. | 1909
Henry E. Vineing, the original rélator in this proceeding, was, about the 1st of July, 1903, duly appointed electrical engineer in the fire department of the city of Hew York, and he thereafter entered upon the performance of his duties as such, having previously served as inspector of fire alarm boxes. In July, 1906, John H. O’Brien, commissioner of the fire department) abolished the position of electrical engineer and discharged Vineing, who immediately protested that the action of the commissioner' was in violation of section 1543 of the Greater Hew- York charter (Laws of .1901, chap. 466) and section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1904, chap. 697), since he was an exempt volunteer fireman. Thereafter, for the same reason, he requested O’Brien to appoint him to the position of superintendent of fire alarm telegraph, and subsequently made a similar request to Francis J. Lantry, who succeeded O’Brien as commissioner. His requests'were unavailing, and he thereupon obtained an alternative writ of mandamus to compel the .commissioner of the fire department to either reinstate him as electrical engineer or appoint him superintendent ■ of fire alarm telegraph, on the ground that the position formerly held by him had been abolished solely for the' purpose of removing him, and, being an exempt volunteer fireman) he could not be removed without a hearing. Upon the trial of the issues raised by the return to the writ the jury found that Vineing was an exempt volunteer fireman, and that the position of electrical engineer had been abolished by the commissioner in bad faith. A motion for a new trial was denied, and an order made directing the issuance of a peremptory writ commanding the commissioner of the fire department to reinstate Vineing to the position of electrical engineer. The appeal is from both orders. Prior to the trial .the present appellant became fire commissioner in place of Lantry and was substituted as a party. Since the trial Vineing has died) and his administratrix eum testamento annexoh&s been substituted in his place".
Assuming that Vineing was an exempt volunteer fireman, the effect of the commissioner’s action in abolishing, the position which
The question presented depends for its solution upon the determination of the fact as to whether or not Vineing at the time ivas an exempt volunteer fireman.. If he was, then he could be removed only after a hearing, which he did not have. The fact is not disputed that the commissioner had the power to abolish the position of electrical engineer, but while he had this power he could not legally exercise it for the sole purpose of removing Vineing without a hearing. (People ex rel. Corrigan v. Mayor, etc., 149 N. Y. 215; People ex rel. Shields v. Scannell, 48 App. Div. 69; People ex rel. Bean v. Clausen, supra; Matter of Jones v. Willcox, 80 App. Div. 167.) The burden of proof, ‘of course, was upon the relator to show not only that he was an exempt volunteer fireman, but-that the commissioner acted in bad faith in abolishing the position. I-do not think in either respect he sustained this burden. At the trial it appeared that after Vineing’s removal the commissioner proposed to establish, a new position called superintendent of fire alarm telegraph, the duties of which it is claimed were similar to
It seems to me, therefore, that the court erred in charging the jury, in substance^ that they might find the position had been abolished in bad faith if the commissioner acted with a view to removing the relator. The charge in this respect should have been qualified by stating to the jury that they' must also .find, in that event, that the abolishment of the position was not real, and that some person or persons had thereafter been appointed to perform all or part of the same duties.
I am also of the opinion that the finding that Yineing was an exempt volunteer fireman was not warranted by, but was against the evidence. The evidence which it is claimed established that fact is, in substance, this : In October, 1902, he became a member of Union Hose Company No. 8, North Shore Fire Department on Staten Island and continued to be such member until the company disbanded in 1905. At the time it disbanded it had simply one hose cart and over 500 members. It is perfectly obvious that this company was not organized or maintained in good faith, but solely for the purpose of claiming the statutory exemption. Yineing frankly admitted, while'being examined as a witness, that one of his reasons for joining the company was the exemption it would afford him, and the only fair inference which can be drawn from the evidence bearing on that subject is that that was. his only motive. During all the time which he claims to have been a member he was a paid
It is perfectly clear, when all of the evidence offered bearing upon the issues is considered, that Yineing never joined the Staten Island company, in good faith, with the intention of performing services therein, but that his action in that regard was a mere sham taken solely for the purpose of bringing himself within the provisions of the statute so that he might claim its benefits. The case in this respect.falls clearly within the decision of this court in People ex rel. Schulum v. Harburger (132 App. Div. 260).
The orders appealed from, therefore, must be reversed and a new trial granted, with costs to the appellant to abide the event.
Ingkaham, Ladghlin, Houghton and Scott, JJ., concurred.
Orders reversed and new trial ordered, costs to appellant to abide event.