241 A.D. 485 | N.Y. App. Div. | 1934
Lead Opinion
The petitioner, a veteran of the World War, held a position in the competitive class of the classified civil service as stenographer, grade 3, in the department of parks of the city of New York. To this position he had been appointed by the commissioner of parks of the borough of Manhattan in November, 1925. Charges of misconduct and neglect of duty were served on him on May 11, 1933. Therein he was notified that a hearing on the charges would be held by the commissioner of parks of the borough of Manhattan on a specified date, at which he might appear and be represented by counsel. Hearings on the charges were thereafter held before the commissioner of parks, who found petitioner guilty on certain of the charges and removed him from his position as stenographer in the department of parks.
Section 1543 of the charter contained the following provisions: “ The heads of all departments and all borough presidents (except as otherwise specially provided) shall have the power to appoint and remove all chiefs of bureaus (except the chamberlain), as also all clerks, officers, employees and subordinates in their respective departments, except as herein otherwise specially provided, without reference to the tenure of office of any existing appointee.”
Upon reargument, the court below held that under these provisions • of the charter the commissioner of parks had no power to remove the petitioner. Apparently the court proceeded on the theory that the park board was constituted the head of the department of parks by section 607 and that the head of each department was vested with power of appointment and removal by section 1543. The petitioner, however, was appointed to the position which he occupied by the park commissioner under the express power of appointment conferred upon him by section 614 of the charter. By section 1543 the power to “ appoint and remove ” is vested in the head of each department, but it is so vested “ except as otherwise specially provided.” Since the power of appointment to the office here in question was vested in the commissioner, that power carried with it, as a necessary incident, the power to remove, thereby excluding it from the operations of section 1543. In People ex rel. Corrigan v. Mayor, etc. (149 N. Y. 215) the court said: “ It is a well-established rule of law that the power to appoint to an office or position, where the term or tenure is not defined by statute, or otherwise, necessarily carries with it the power of removal. [People ex rel. Sims v. Fire
The order should be reversed, with twenty dollars costs and disbursements, and motion denied, with ten dollars costs.
Finch, P. J., and Martin, J., concur; Merrell and O'Malley, JJ., dissent and vote for affirmance.
Dissenting Opinion
(dissenting). The only question involved upon this appeal was as to whether, under the law as it existed at the time of the removal of the respondent, the borough park commissioner had authority to make such removal. Prior to the present year the park department of the city of New York consisted of a park board of commissioners which was the. head of the department. The department of parks was one of the administrative departments of the city. Section 101 of the Greater New York Charter provided that: “ The head of the department of parks shall be called the park board.” Section 607 provided: “ The head of the department of parks shall be called the park board.” Section 607 provided, also: “ The principal office of the department of parks shall be in the borough of Manhattan. There shall be branch offices in the boroughs of Brooklyn, Queens, Richmond and The Bronx.” Section 612 provided that “ Subject to such general rules and regulations as shall be established by the board, each commissioner shall have charge of the management and be responsible for the care of all such parks, parkways, squares and public places as are situated in the Borough or Boroughs over which he has jurisdiction.” Section 614, entitled, “ Appointment of subordinate officers,” provided: “ The park board shall have power to appoint a secretary and such subordinate officers as may be necessary for the proper conduct of the office of the department.” The same section also provided: “ Each commissioner shall have power to appoint such superintendents, engineers, subordinates, clerks and assistants as may be necessary for the efficient performance of the duties of the department respecting the parks, squares and public places within his jurisdiction.” Such power of the individual commissioners to appoint was subject to the rules and regulations of the board and
Technically, we think the order was right and should be affirmed, with twenty dollars costs and disbursements to petitioner, respondent, against appellant.
O’Malley, J., concurs.
Order reversed, with twenty dollars costs and disbursements, and motion denied, with ten dollars costs.