McNeles v. Board of Supervisors — 173 A.D. 411

Majority

p. 411

In the Matter of the Application of Michael J. McNeles, Appellant, for a Writ of Mandamus against The Board of Supervisors of Rensselaer County, Respondent.

Third Department,

June 30, 1916.

Headnote

Civil service — removal of honorably-discharged soldier from position as laborer — temporary appointment.

Where the maintenance and supervision of a bridge and the employees thereof are by resolution of the board of supervisors made subject to the county superintendent of highways, and the laborers are to perform their work under his direction and control “ until further direction in the premises,” and there is nothing in the resolution to support a contention that the appointment of a laborer or his continuance in the performance of his duties is to be dependent on the further direction of the board, the appointment cannot be deemed a temporary one, and an honorably -discharged soldier so appointed cannot be removed, except upon charges and after a hearing upon the same under section 22 of the Civil Service Law, as amended.

The fact that the board of supervisors attempted, without authority, to turn over the control and care of the bridge to a city, cannot affect the position of such a laborer.

Appeal by the relator, Michael J. McNeles, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 31st day of March, 1916, denying his application for a peremptory writ of mandamus to compel the board of supervisors of Rensselaer county to restore him to his position as laborer on the bridge between Troy and Cohoes.

p. 412

John J. Mackrell, for the appellant.

Herbert F. Roy, for the respondent.

In November, 1914, the board of supervisors of Rensselaer county appointed the appellant to the position of laborer in the maintenance of the bridge between Troy and Cohoes, which bridge had become a free bridge, and the maintenance of the same had become a part of the highway system of the counties of Rensselaer and Albany under section 267 of the Highway Law (Consol. Laws, chap. 25 [Laws pf 1909, chap. 30], as added by Laws of 1909, chap. 146). The appellant performed the duties of his position until January, 1916, when he was removed, and another was designated to such position. The appellant is an honorably-discharged soldier, having served as such in the incidental insurrection of the Philippines prior to July 4, 1902, and, therefore, under section 22 of the Civil Service Law (Consol. Laws, chap. 7; Laws of 1909, chap. 15), as amended by chapter 264 of the Laws of 1910, cannot be removed except upon charges, and after a hearing upon the same. The main contention of the respondent is that he was temporarily appointed. . The position is in fact a permanent one. And it is doubtful whether the board of supervisors could defeat the purposes of the Civil Service Law by the subterfuge of a temporary appointment to a permanent position. But it does not appear that the board by its resolution of appointment attempted to do so. The maintenance and supervision of the bridge, and the employees thereon, were by said resolution made subject to the county superintendent of highways, and the laborers were to perform their work under his direction and control “ until further directions in the premises.” But there is nothing in the language of the resolution which gives color to the contention of the respondent that the appointment of the appellant or his continuance in the performance of his duties was dependent on the further direction of the board. In December, 1915, the board attempted to turn over to the city of Troy the control and care of the bridge, and the designation of the employees thereon, but it is practically conceded that such effort was without authority, and, therefore, ineffectual, and nothing in

p. 413

that connection can be held to disturb the tenure of the position of the appellant. We have carefully considered all the points raised by the respondent, but discover no justification for the summary removal of the appellant.

The order should, therefore, be reversed, with costs, and the application granted, with fifty dollars costs.

All concurred.

Order reversed, with costs, and application granted, with fifty dollars costs.