10 N.Y.S. 815 | N.Y. Sup. Ct. | 1890
The writ has been issued upon the assertion of the relator that he was removed from his position of clerk of the markets in violation of section 48, c. 410, Laws 1882. So much of the section as is asserted to have been infringed by his removal is that declaring that*"no regular clerk or head of a bureau shall be removed until he has been informed of the cause of the proposed removal, and has been allowed an opportunity of making an explanation, and in every case of a removal the true grounds thereof shall be forthwith entered on the records of the department or bureau. ” But by the return which the respondent has made to the writ it appears that an investigation had taken place before the commissioners of accounts, of the methods of the department of finance, so far as they related to the allotment of stands or stalls in the new West Washington Market, and that in the course of that investigation it appeared that the relator received money from certain market-stand holders during the latter part of the year 1888, and prior to the 4th of January, 1889, and that Michael Woolley had testified before the commissioners that he had asked the relator to look out for the interests of the witness in the allotment of stands, and had paid him $25 for so doing; that Frederick Menk had also testified that he and his partner had applied to Woltman to have certain stands allotted to them, and upon the allotment he had paid $25 or $50 to Woltman for election purposes; that Nelson Doe had testified that, for the allotment of stands to his firm of Dudley, Clapp & Doe, he made a present of $100 to Woltman, and that Francis Lowery testified that his firm had given $250 to the relator for his services in getting them four stands in the market, and that other persons had paid him $25 for his trouble in arranging stands for them. The amended return also stated that the comptroller had sent to the relator an oral communication by Brewster Maverick that he had been informed that testimony had been taken before the commissioners of accounts that the relator had received bribes in his official capacity, and therefore demanded an explanation of his conduct with reference thereto, on the ground that his conduct, if unexplained, would call for his removal. Maverick in an affidavit made by him subsequent to the return denied having conveyed this communication to the latter. But this denial, as well as that of the relator himself, is overcome in its effect by the letter of the latter to the comptroller, dated on the 17th of March, 1889, for by this letter it appears that the relator had received information concerning his conduct, requiring on his part an explanation, and this letter then proceeded to give such an explanation as the relator supposed would exonerate him from the effect of the testimony given before the commissioners of accounts; and in his.letter of explanation he admitted that he had received money which he had donated for political purposes. No other evidence to support his statement was supplied by him in any form to the comptroller, and the letter in its details clearly indicates that information had been received by the relator of the nature and character of that mentioned in the return of the comptroller, and that it was in answer to that, and in compliance with the necessity of explanation on his part, that the letter was written; and after receiving this letter from the relator the comptroller made the order removing him from his office.
The section of the act of 1882 does not require any special formality in the proceedings to be taken for the removal of the clerk, but what has been required is that information shall be given to him of the cause of the proposed removal. The information is not required to be in writing, although it is advisable that it should be, and it could therefore be communicated in the form in which the comptroller conveyed it, and which it appears from the conduct of the relator he received, and it afforded the opportunity for explanation to the latter which the statute was intended to secure to him before his removal could regularly be made. But when this explanation was received by the comptroller, then he was at liberty to act upon the case. He was not concluded by the letter and explanation of the relator, neither was it necessary
Van Brunt, P. J., concurs. Brady, J., concurs in result.