People ex rel. Guptill v. Sullivan — 143 A.D. 937

Majority

p. 937

The People of the State of Mew York ex rel. Henry A. Guptill, Relator, v. Joseph Sullivan, as Commissioner of Public Works of the Borough of Queens, City of Mew York, and Lawrence Gresser, as President of the Borough of Queens, City of Mew York, Respondents.

Headnote

Gertiorari — removal of city employee —pleading excuse for disobeying order.

Certiorari issued out of the Supreme Court and attested on the 17th day of June, 1910, to review the action of Joseph Sullivan, commissioner of public works of the borough of Queens, acting as president of said borough, in removing relator from his janitorship of the town hall, Jamaica.

The evidence is so brief as to make doubtful whether the relator meant to plead that he was guilty in the sense that he disobeyed the order from the necessity of looking after his fires. In other words, did he plead disobedience and justify it upon the ground that another more urgent duty compelled refusal? The consequences to the relator are so serious that the doubt should be resolved in his favor. It should appear with reasonable clearness whether the conflict of duties actually existed; if so, how long the relator was constrained to disobey; whether thereafter an opportunity to obey occurred, and whether the relator then showed by his actions a disposition to obey the order. The determination should be annulled, with fifty dollars costs and disbursements, and relator reinstated. Jenks, P. J., Carr and Rich, JJ., concurred; Hirschberg, J., dissented. Determination annulled, with fifty dollai's costs and disbursements, and relator reinstated.