People ex rel. Schott v. Prendergast — 148 A.D. 135

Majority

p. 135

The People of the State of New York ex rel. William H. Schott, Appellant, v. William A. Prendergast, as Comptroller of the City of New York, Respondent.

First Department,

December 1, 1911.

Headnote

Civil service —mandamus to compel reinstatement —right of relator to file supplementary affidavits — laches.

Where a person dismissed from a position in the classified competitive civil service of the city of New York has petitioned for a peremptory writ of mandamus to compel his reinstatement upon the ground that, although his discharge was stated to have been made in the interests of a more economical administration of the department and in conformity with the budget allowance for the year, there was, nevertheless, a suf- ■ ficient sum appropriated to pay him and other employees, he is entitled, on subsequently discovering that the head of his department has appointed a person in the exempt class to perform the same duties at a larger salary and avers that such appointment was for political reasons in violation of the statute, to have his affidavits setting forth said facts made part of "his moving papers. The head of the department should then be given time to answer.

Under the circumstances the relator was not guilty of laches.

Appeal by the relator, William H. Schott, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York

p. 136

on the 20th day of July, 1911, denying the relator’s motion to amend a petition for a peremptory writ of mandamus- and for an alternative writ upon said petition as amended.

Edwin Welling Cady, for the appellant.

Harry Crone, for the respondent.

The relator was appointed on July 23,1902, a deputy auditor in the department of finance, a position then in the classified competitive civil service. He so remained until March 1, 1903, wh'en the title of his position was changed to that of examiner, which also was in the classified competitive civil service. He was still discharging the duties of the latter office when on December 5, 1910, he was notified by the comptroller that “ in the interests of a more economical administration of the Department of Finance (Comptroller’s' Office) and in order to conform to the Budget allowance as made for the year 1911, which contains no provision for your salary,” the services of relator would cease at the close of business December 31,1910. Relator avers that the annual departmental estimate for 1911, as confirmed by the board of aldermen of the city of Hew York, did appro - priate a sufficient sum for the payment of the salaries of all employees holding- classified competitive positions under civil service therein, including the relator, and that there is a balance left from the fund so appropriated’ Relator duly presented himself for duty on January 3, 1911, the first working day after December 31, 1910, but he was told his services were no longer required. On May 2, 1911, he commenced this proceeding, his petition setting forth the foregoing facts among • others, and further claiming that persons in the exempt class whose salaries aggregated more than that of relator had been employed in the department at the time of his dismissal, and that his attempted dismissal was unlawful. The comptroller duly answered the charges made in the petition,'his affidavit stating that he had. abolished in good faith the position held by relator, and that such abolition was part of a general plan to effect economies in the department of finance.

On June 30, 1911, relator obtained an order to show cause

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why an alternative writ of mandamus should not be issued and why there should not be consolidated with and made a part of the moving papers an affidavit made by relator on June 28, 1911. In this affidavit he set forth that on June 24, 1911, he fully discovered for the first time that on December 7, 1910, the comptroller had appointed one Stephen Wick-ham a deputy auditor (which is a position in the exempt class) to perform .the identical duties of relator and at an annual salary larger by $300 than that of .relator. He further avers therein that the appointment of Wickham was for political purposes, in violation of the civil service rules and statutes.

We are of opinion that under the circumstances relator was guilty of no laches, and that he should be permitted to have included as part of his moving papers on the original application the supplemental affidavit in which he set up the new matter referred to. The comptroller should then be given time within which to file his answering affidavits, whereupon relator may have leave to renew his application for an alternative writ óf mandamus, if he be so advised.

The order appealed from should, therefore, be reversed, without costs, and an order entered in accordance with the views herein expressed.

Ingraham, P. J., Laughlin, Scott and Miller, . JJ., concurred.

Order reversed, without costs, and an order directed to be entered in accordance with views expressed in opinion. Order to be settled on notice. -