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People ex rel. Nason v. Feitner

58 A.D. 594 Court N.Y. App. Div. English

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p. 594
The People of the State of New York ex rel. James H. Nason, Appellant, v. Thomas L. Feitner and Others, as and Composing the Board of Taxes and Assessments of the City of New York, Respondents.

Headnote

Civil service — dismissal of a veteran where the position is abolished on economical grounds — effect of the verdict of a jury in mandamus proceedings.
An honorably discharged veteran of the Union army, holding a position in the-civil service of a municipal corporation, may be removed for the reason that the position which he occupies is abolished on economical grounds, and its duties may be attached to an, existing office held by a person not a veteran.
The verdict of a jury rendered in a mandamus proceeding, upon the trial of the issue whether the abolition of tho veteran’s position was in good faith and for the purpose of economy, is of the same force as a verdict rendered in an ordinary action at law.
Appeal by the relator, James H. Nason, from a final order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the fTth day of December, 1898, dismissing an alternative writ of mandamus, commanding the respondents to reinstate the relator in the position of clerk in the office of the departtnent of' taxes and assessments of the city- of New York, and also from an order made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 11th day of June, 1900, denying the relator’s motion for Anew trial of the issues submitted to the jury.
Henry M. Hater [George F. Elliott with him on the brief], for the appellant.'
William J. Carr, for the respondents.

It appears from the record that the relator, James H. Nason, was a veteran soldier of the late war of the ¡Rebellion, although there is nothing in the case to indicate that this fact was. known to the respondents until after the dismissal of the relator. Both parties appear to have conceded that the only question involved upon the trial of the issues raised by the application for a peremptory writ of mandamus to compel the reinstatement of the relator was the good faith of the respondents in abolishing the. position. • The. law is well settled that an honorably discharged veteran of the Union army may be removed for the reason that the position which he occupies is abolished on economical grounds, and that its duties may be attached to an existing office which is held by a person not a veteran. (People ex rel. Corrigan v. Mayor, 149 N. Y. 215 , 225, and authorities there cited; Matter of Kelly, 42 App. Div. 283 . See, also, Matter of Breckenridge, 160 N. Y. 103 , 108.) The only question finally submitted to the jury, by the common agreement of the parties in interest, is stated by the court below as follows: “Was the action of the Board of Taxes and Assessments in abolishing the position of the relator taken in good faith and for the purposes of economy ? ” The jury found in favor of the respondents, and from the final order, and from an order denying a motion for a new trial, appeal comes to this court.

We find no reversible error in the case, and while there might be room for a difference of opinion upon the conflicting evidence submitted to the jury, we do not find such a preponderance of evidence in support of the contention of the relator as to warrant this court in interfering with the verdict of a jury, which is of equal force in a matter of this character as in an ordinary action at law. (People ex rel. Coveney v. Kearny, 44 App. Div. 449 , 453 ; S. C., 161 N. Y. 648 .)

The. orders appealed from should be affirmed, with costs.

All concurred, except Jerks, J., not sitting.

Order's affirmed, with costs.

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