159 N.Y. 235 | NY | 1899
On this appeal the relator insists that his attempted removal by the defendant on the 11th day of June, 1898, was illegal upon two grounds, first, because it appears by *237 the relator's petition that he was holding the position of a regular clerk, and, therefore, could not be removed without an opportunity to make the explanation provided for by § 1543 of the Greater New York charter; second, because he was removed from a competitive position without having the reasons therefor set forth in writing and duly filed, and an opportunity afforded him to make an explanation under chapter 186 of the Laws of 1898.
As to the first ground the Appellate Division unanimously held that the facts recited in the petition did not show that the position held by the relator was that of a regular clerk, and, hence, it affirmed the order of the Special Term dismissing the writ. The opinion of that court so exhaustively considers the question as to leave nothing to be added, and we adopt it as furnishing the reasons for holding that the relator's first position on this review is not well taken.
The second ground of error alleged is apparently presented in this court for the first time in the history of this proceeding. The record contains no indication that it was brought to the attention of the Special Term or of the Appellate Division. It is suggested that the reason for it is obvious, in that the order of the Special Term was made in October, 1898, while the Fleming
case (People ex rel. Fleming v. Dalton,
If, however, in violation of the rule that a party on appeal must stand by the theory of his action or proceeding as presented at the trial court or Special Term, we proceed to inquire into the matter, we must reach the conclusion that the relator did not show in his petition that he was within the protection of chapter 186 of the Laws of 1898, in that his petition fails *238
to state that his position under the Civil Service Law and rules was classified as competitive. In the Leet case this court held not only that the act of 1898 had no application to an official who was classified in the non-competitive class by the New York city civil service regulations, but also that it mattered not that at the time of his appointment the position belonged to the competitive class if it was subsequently and before the act of 1898 took effect classed as non-competitive. (People ex rel.Leet v. Keller,
The order should be affirmed, with costs.
All concur, except BARTLETT, J., not voting.
Order affirmed.