People ex rel.Collins v. McAneny, 144 N.Y.S. 121

144 N.Y.S. 121 | N.Y. Sup. Ct. | 1912

BISCHOFP,

J. All the facts necessary to establish the relator's right to reinstatement having been found upon the trial of the issues joined upon the alternative writ, a peremptory writ is to issue unless certain facts set up by the respondent and found by the jury may be availed of to defeat the case.

[1] So far as it is claimed that reinstatement should be sought by • quo warranta proceedings, because of the appointment of another person to the position from which the relator was removed, the facts were set up by the alternative writ and the legal sufficiency of the case, so alleged, must be taken as established for the purposes of the present application by the determination announced upon demurrer to that pleading. People ex rel. Collins v. Ahearn, 193 N. Y. 441, 86 N. E. 474.

[2] The further contention that reinstatement should not be directed to a position abolished subsequent to the date of the relator’s unlawful removal overlooks the rule that the relator is entitled to a writ of mandamus in order that his rights with respect to the salary which has accrued may be defined. A final order for reinstatement is a condition precedent to a recovery of this salary by suit. Sutliffe v. City of N. Y., 132 App. Div. 831, 835, 117 N. Y. Supp. 813. .

[3] The remaining question presented is whether by accepting an appointment as commissioner of estimate and appraisal in a street opening proceeding after his removal the relator abandoned his right to the employment from which he was removed; it being contended by the respondent that section 1549 of the charter applies. This section provides:

“Any person hoMlng office, whether by election or appointment, who shall, during his term of office, accept, hold, or retain any other civil office of honor, trust, or emolument under the government * * * of the state * * * or who shall hold or accept any other office connected with the government of the city of New York, * * * shall be deemed thereby to have vacated any office held by him under the city government.”

In my opinion the statute does not apply to the relator’s employment as superintendent of the bureau of highways. While the word “office” is sufficiently broad in its possible application to embrace any employment where duties are to be performed, the words “during his term of office” limit the meaning to an office of a public character having a definite term. Certainly the words do not reasonably describe an appointee whose duties are to render assistance to a public officer under his direction, for no described “term of office” which could measure the duration of the employment. The relator is to be classed as an employé rather than as an officer within this section of the charter. See Padden v. City of New York, 45 Misc. Rep. 517, 92 N. Y. Supp. 926. Assuming, therefore, that the words “holding office” could be intended to apply to an officer removed but claiming reinstatement, and that the commissionership of estimate was a “civil office of trust under the gov•ernment of the state,” the statute has no bearing upon the present case in view of the nature of the position to which reinstatement is sought.

I conclude that the relator is entitled to a peremptory writ as prayed. Final order may be presented accordingly.