People ex rel. Steffan v. Murray — 2 A.D. 359

Majority

p. 359

The People of the State of New York ex rel. Henry W. Steffan, Relator, v. Joseph Murray and Others, Commissioners, Composing the Board of Excise of the City and County of New York, Respondents.

Headnote

Municipal corporations — hoard of excise of New York — it may remove aninspector of excise at its discretion — request of resignation.

Upon the hearing of a return to a writ of certiorari directed to the commissioners of the hoard of excise of the city and county of New York requiring them to make a return of their proceedings in relation to removing the relator from the office of an inspector of excise, it appeared that the commissioners-resolved that their clerk he directed to request the resignation of all the inspectors, and that it was further resolved that if they did not resign by four o’clock of the same day that they should be dismissed; that the relator refused ■ to resign and was dismissed.

Meld, that the relator was a mere employee and that the board of excise had power to remove him;

That if they had a right to remove him it was immaterial whether or not they requested him to resign before they did remove him. ■

Cebtioeabi issued out of the Supreme Court and attested on the 5th day of April, 1895, directed to Joseph Murray and others, composing the board of commissioners of excise of the city and county of New York, directing them to certify and return to the office of the clerk of the county of New York all and singular their proceedings in relation to the removal of the relator from the office of an inspector of excise for the city of New York.

Chas. JBlandy, for the relator.

Julms M. Mayer, for the respondents.

Up to the time of his discharge complained of, the relator was an -excise inspector, having been appointed' in 1889. On the 28th day ■of February, 1895, the board of commissioners of excise at a meeting resolved'that the clerk should be and was directed to request the resignation of the inspectors, among whom was the relhtor. It was further resolved at the same time that in case of the refusal of ■any of them to resign as requested, by four o’clock in the after- , noon of that day,' each one who did not resign was dismissed from the service of the. department. A notice of the passage of this .resolution was given to the relator. He was requested to resign, but .refused, and thereupon he was informed that his services were no longer required, and that he should consider himself dismissed, lie brings this writ to review the action of the respondents in ■dismissing him.

It is not seriously contested by the relator but that the position which he occupied was that of a mere employee, and that the power ■of the removal was intrusted to the commissioners to be used practically at ,their discretion. This was the opinion of the' Court of Appeals, with regard to persons holding the same position, as expressed in the case of Gregory v. The Mayor ( 113 N. Y. 416 ). Occupying, as the relator did, simply the position of an employee, it is well settled that the respondents, to whom was given the right to employ him, had also the right to remove him whenever they saw fit. (People ex rel. Fonda v. Morton, 148 N. Y. 156 .)

But the complaint. of the relator is not so much that he was dismissed by the respondents as that the resolution which they passed, although purporting to discharge him 'if he did not resign, was not in fact sufficient for that purpose. We can see no force in this contention. It seems that undgr civil service rules certain disabilities follow the discharge of one who has been employed in the public service, For that reason, it having been determined by the respondents that the services of the relator were no longer necessary, they desired to relieve him from the disabilities which accompanied the fact of his discharge by permitting him to resign if he saw fit to do so, upon receiving the notice. But their resolution was plain and positive that if he did not resign he was discharged. The action of the commissioners in discharging him was conclusive,

p. 361

and there was no doubt about the meaning of the resolution. They might have discharged him without any conditions whatever, but they saw fit to permit him to resign as a favor, rather than exercise their undoubted right. If they had done this by two resolutions, 'one requesting his resignation, and the other passed after the time fixed for the resignation, simply discharging him, nobody would suggest that they had done anything more than they had the right to do. The fact that they exercised their undoubted right in a different way cannot effect the validity of their action.

The writ must be dismissed and the' proceedings affirmed, with fifty dollars costs to the respondents.

Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.

Writ dismissed and proceedings affirmed, with fifty dollars costs to respondents.

Cases cited

Gregory v. Mayor of New York 113 N. Y. 416 N.Y. 1889-04-16 p. 359
People ex rel. Fonda v. Morton 148 N. Y. 156 N.Y. 1896-01-07 p. 359