73 N.Y.S. 823 | N.Y. App. Div. | 1901
From the affidavits filed by the relator in. this matter it appears that in February, 1884, he was appointed, and had since up to January 22, 1900, been continuously employed, as an assistant engineer at the main pumping. station of the water works system of the city of Troy; that there were five' other assistant engineers employed at shell station, each of whom performed like duties and received the same compensation, viz., seventy-five - dollars per month, as the. relator" did ; that such men worked in shifts of eight
Assuming that the foregoing statements are true, it would, in my opinion, follow that the relator should be reinstated to the position
It is contended on the part of the defendant that this relator is hot protected by the statute in question, because he had, by the present charter of the city of Troy, viz., Laws of 1898, chapter 182, been legislated out of his position ; and that, therefore, his employment under the provisions of section 107 was at the will,of the com/missioner of public works. That act, known- as the act for the government of cities of the second class, became operative as to the city of Troy on January 1, 1900, and by section 107 it provides that the ■commissioner of public works “ shall appoint, to hold office during, his pleasure, a deputy cmd such other subordinates as may be prescribed by the board of estimate and apportionment.” This, it is urged, removed from the relator whatever protection he might have previously had under the Veteran A.ct, and hereafter gives the commissioner the power to discharge any veteran he may thereafter employ, without charges and at his will. -If the word “ subordinates ” can be held to include the relator and all other employees in that department, I cannot agree with the result which the defend
If the employment in which the relator was engaged when the commissioner of public works entered upon his duties under the new -charter had been a distinct office or employment, the'duties of which were performed by the relator alone, and such office had been abolished and its work abandoned or turned over to some other office, ■■then this case would have been similar to the Rochester case decided ■by Mr. Justice Davy, and to which we are referred. But, evidently, this relator was one of many employees engaged in the same ■duties, and each hired to perform work which was common to all. When economy required that the • number of men so employed should be diminished, necessarily a selection must be made- from among them all, and in that selection the statute secures to the veteran the right to be retained.
It is further objected that because the commissioner did not know that the relator was a veteran when he was discharged, he is not now •entitled to be reinstated. That objection is met and settled against the defendant by the decision in the Stutzbach case.
Upon the record before us, however, it is not conceded that all •of the above statements set forth in the moving affidavits are true. Thus the defendant, by answering affidavits, puts in issue the. question whether the relator is an honorably discharged soldier within the provisions of the Veteran Act; also denies that he was dis
It results that the order should be reversed, witn costs, and the application for an alternative writ granted.
Smith, Edwards, Chase and Houghton, JJ., concurred..
Order reversed, with ten dollars costs and disbursements, and application for alternative writ granted.