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People ex rel. Brown v. O'Bbrien

122 N.Y.S. 25 Court N.Y. App. Div. Decision date 1910-03-24 English

Delivered by CLARKE, J.

Contents

Majority

p. 25
(137 App. Div. 311.)
PEOPLE ex rel. BROWN v. O’BRIEN, Commissioner of Department of Water Supply, Gas, and Electricity of City of New York.
(Supreme Court, Appellate Division, First Department.
March 24, 1910.)

Headnote

1. Mandamus (§ 172[1] )—Nature of Proceeding—Review of Removal from Office.
A mandamus proceeding does not act as a writ of review, and, if opportunity to make an explanation before removal was granted to one seeking restoration to his office, the court will not consider whether the charges against him ought to have been sustained.
[Ed. Note.—For other cases, see Mandamus, Dec. Dig. § 172.[1] ]
2. Municipal Corporations (§ 159[1] )—Removal from Office—Civil Service Regulations.
The filing by a commissioner of a department of New York City of a statement of the grounds of removal from an office in the classified civil service as required by the civil service rules is not a condition precedent, but is enough if it is subsequently filed.
[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 159.[1] ]
3. Municipal Corporations (§ 155[1] )—Removal from Office—Procedure."
A commissioner of a department of New York City is vested with the power of removal from an office in his department, when he follows the procedure provided by the statute.
[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 155.[1] ]
Appeal from Special Term, New York County.
Mandamus by the People, on the relation of Frank E. Brown, against John H. O’Brien, as Commissioner of the Department of Water Supply, Gas, and Electricity of the City of New York. From an order directing a peremptory writ, respondent appeals.
Reversed.
Argued before INGRAHAM, P. J., and LAUGHLIN, CLARICE, SCOTT, and MILLER, JJ.
Archibald R. Watson, Corp. Counsel (Terence Farley, of cotinsel, and Theodore Connoly, on the brief), for appellant.
Flynn & Hess (Henry S. J. Flynn, of counsel, and Samson Fried-lander, on the brief), for respondent.

This is an appeal from an order of the Special Term directing a peremptory writ of mandamus to issue commanding the commissioner of water supply, gas, and electricity of the city of New York to forthwith and immediately restore, reinstate, and retain Frank E. Brown, the relator, to and in the office and position of electrical engineer of the electrical bureau for the boroughs of Manhattan and the Bronx.

Relator was in the classified civil service, and was the head of a bureau, and therefore, under section 1543 of the Charter (Laws 1901, c. 466), he could not be removed until allowed an opportunity of making an explanation. He was suspended. An investigation was going on in regard to his bureau. He waited some months and began proceedings for a mandamus. He was then served with notice of charges and given an opportunity to appear on the 8th of February to "give an explanation or was permitted to do so in writing. He'

p. 26
chose to submit on that day a voluminous answer in writing by his counsel. The commissioner inquired if he desired to appear for further explanation, and the answer was that he did not care' to attend or appear in person. Thereafter the commissioner removed him. He did not at once, however, file the reasons therefor as required by the civil service rules, but, when that was called to his attention by these proceedings, he promptly did so.

We have held repeatedly that a mandamus proceeding does not act as a writ of review, and, if the opportunity to make an explanation has been granted, we will not consider whether the charges ought to have been sustained. In People ex rel. April v. Butler, 122 App. Div. 790 , 107 N. Y. Supp. 833 , we held that the filing of the statement of the grounds of removal as required by the civil service rules was not a condition precedent, but it was enough if said statement was subsequently filed.

The commissioner in his answer stated that he found relator guilty of the particular charges, after having given him an opportunity for an explanation and after consideration thereof. There is nothing for the court to review in this proceeding.

The commissioner is vested with the power of removal when he follows the procedure provided by the statute.

The order appealed from should be reversed, with $10 costs and disbursements to the appellant, and the motion denied, with $10 costs. All concur.