185 N.Y. 141 | NY | 1906
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *143
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *144 The learned Appellate Division, in this submitted controversy, upon an agreed state of facts, decided that the plaintiff, as the widow of Michael Reidy, deceased, cannot recover from the New York Fire Department Life Insurance Fund the sum of $1,000.00, notwithstanding the provision of section 1543 of the charter of the city of New York, which reads in part as follows:
"Wherever in any department or institution an office, position or employment is abolished, or made unnecessary through the operation of this act, or in any other manner, or whenever the number of offices, positions or employments of a certain character is reduced, the person or persons legally holding the office or filling the position or employment thus *145 abolished or made unnecessary shall be deemed to be suspendedwithout pay, and shall be entitled to reinstatement in the same office, position or employment, or in any corresponding or similar office, position or employment, if within one year thereafter there is need for his or their services."
We are constrained to take a contrary view of the question of law here presented. The language of the charter in this connection is unambiguous, and evidently intended to provide for such a case as is here presented. Michael Reidy had faithfully served in the fire department for more than eighteen years, during which period he was several times promoted and his compensation gradually increased from $2.50 per day to $1,500 a year.
On the 14th day of May, 1902, he was informed in writing by the commissioner that the position which he held as clerk in the bureau chief of department of the fire department having been abolished he was discharged, his services being no longer needed. In two weeks from the date of this notice Michael Reidy died, May 28th, 1902.
The Appellate Division said in its opinion: "It seems like a harsh rule in this case, but we are of opinion that the decedent was not in the service of the fire department at the time of his death, and that, therefore, his widow is not entitled to participate in the insurance fund."
The duly constituted authorities of the fire department may discharge a member for cause, and the one so dealt with loses his right to share in the insurance fund, although he may have contributed to it for years; but the exercise of this power is subject to the one exception contained in section 1543 of the charter, already quoted.
The notice of alleged discharge and this section must be read together; in a limited sense the deceased was discharged, that is, from active duty, his position having been abolished; but the statute both in letter and spirit declares that in such a case he "shall be deemed to be suspended without pay, and shall be entitled to reinstatement in the same office, position or employment, or in any corresponding or similar office, position or employment if within one year thereafter there is *146 need for his or their services." In other words, there is here disclosed the clear intention of the lawmakers to mitigate the unfortunate position in which a good and faithful servant finds himself, without his fault, by reason of the abolition of his office. He is granted one year of suspension without pay, and if during that time the opportunity for reinstatement in the same, or a similar position, does not present itself, the qualified discharge becomes absolute.
It is suggested on behalf of the city of New York that this section of the charter "is for the obvious purpose of avoiding another civil service examination, where they have shown by the fact that they held similar positions, that they were qualified for the place."
Section 1543 is found in chapter XXIII of the charter, entitled "General Statutes;" title 3 thereof is entitled "General Provisions."
The suggestion that the section is limited to the exemption from civil service examinations is wholly unsupported. It, therefore, follows that Michael Reidy having died during the said year of suspension without pay, he was at that time in the service of the fire department.
The order and judgment appealed from should be reversed and judgment directed for plaintiff on submitted case, with costs in both courts.
CULLEN, Ch. J., VANN and WILLARD BARTLETT, JJ., concur; GRAY and CHASE, JJ., dissent; HAIGHT, J., absent.
Ordered accordingly.
