People ex rel. Meeks v. Drummond — 141 N.Y.S. 315

Majority

p. 315

PEOPLE ex rel. MEEKS v. DRUMMOND, Commissioner of Charities, et al.

(Supreme Court, Appellate Division, First Department.

May 2, 1913.)

Headnote

.'Mandamus (§ 76*)—Service—Discharge—Charges—Explanation—Civil

Service.

Where relator was removed by the commissioner of charities after service of notice of substantial charges against him and he had been afforded an opportunity for an explanation, the courts will not review in mandamus the commissioner’s determination that the explanation tendered was not sufficient.

[Ed. Note.—For other cases, see Mandamus, Cent. Dig. §§ 158-160; Dec. Dig. § 76.^[1] ]

Appeal from Special Term, New York County.

Mandamus by the People, on relation of George W. Meeks, against Michael J. Drummond, as Commissioner of the Department of Chari-ties of the City of New York, and James Creelman and others, constituting members of the Municipal Civil Service Commission of such city. From an interlocutory judgment in favor of respondents, and ■from an order sustaining a demurrer to an alternative writ with leave

p. 316

to obtain another, relator appeals. Modified, by striking the leave to obtain a new writ, and affirmed.

See, also, 149 App. Div. 915 , 133 N. Y. Supp. 1139 .

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ.

James E. Swanick, of New York City, for appellant.

Archibald R. Watson, Corp. Counsel, of New York City (William E. C. Mayer, of Brooklyn, of counsel, and Terence Earley, of New York City, on the brief), for respondents.

The commissioner of charities removed the relator, after due service of notice of charges upon him, and after affording him an opportunity for explanation. The charges were substantial. The commissioner found the explanation insufficient. The proceedings taken were in conformity with the provisions of the statute. Under such circumstances, the court will not review, in a mandamus proceeding, the action of the commissioner, and determine whether he ought to have been satisfied with the explanation tendered. The demurrer to the alternative writ was properly sustained, but the order and the interlocutory judgment should not have granted leave to obtain a further writ upon the petition as filed.

The judgment and order appealed from should therefore be modified, by striking out the leave granted, and, as so modified, affirmed, with $10 costs and disbursements.