Majority
p. 743In the Matter of the Application of Dorothy Rosengarten, Appellant, Respondent, for a Mandamus Order against Halsey B. Knapp, Individually and as Director of the State Institute of Applied Agriculture on Long Island, Respondent, Appellant.
On the appeal of the petitioner, order, in so far as it denies motion for peremptory mandamus, unanimously affirmed, without costs. On the appeal of Knapp, as director, etc., from so much of the order as grants an alternative man
p. 744
damus, the order is reversed on the law and the facts and alternative mandamus denied, without costs. There is no basis for a trial of the so-called issues presented by the petition and the answering affidavit. The charges upon which the removal was based are substantial (People ex rel. Rudd v. Cropsey, 173 App. Div. 714 ; affd., sub nom. People ex rel. Rudd v. Lewis, 219 N. Y. 641 ; People ex rel. Lawson v. Coler, 40 App. Div. 65 ; affd., on opinion below, 159 N. Y. 569 ; Matter of McGuire, 157 App. Div. 351 ; affd., 209 N. Y. 597 ), and a judicial review is not permitted (People ex rel. Kennedy v. Brady, 166 N. Y. 44 , 47). If the statute[1] has been complied with and charges of substance have been duly served and the employee afforded an opportunity to explain them, as was here the case, a jury may not be called upon to determine an alleged issue of fact involving the sufficiency of the charges or the motives of the removing officer. (Matter of Dunphy v. Kingsbury, 173 App. Div. 49 , 55, 56.) Lazansky, P. J., Young, Kapper, Carswell and Tompkins, JJ., concur.
* See Civ. Serv. Law, § 22, subd. 2, as amd. by Laws of 1924, chap. 612.— [Rep. '
Cases cited
- People ex rel. Rudd v. Cropsey 173 App. Div. 714 p. 744
- In re the Transfer Tax upon the Estate of Quinby 219 N. Y. 641 p. 744
- In re McGuire 157 App. Div. 351 p. 744
- McGuire v. Municipal Civil Service Commission 209 N. Y. 597 p. 744
- People ex rel. Kennedy v. Brady 166 N. Y. 44 at 47 p. 744
- Dunphy v. Kingsbury 173 App. Div. 49 at 55, 56 p. 744