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Hurlbut v. Cromwell

147 N.Y.S. 1035 Court N.Y. Sup. Ct. Decision date 1912-10-14 English

Delivered by GREENBAUM, J.

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p. 1035
HURLBUT v. CROMWELL.
(Supreme Court, Special Term, New York County.
October 14, 1912.)

Headnote

Officers (§ 68[1] )—Civil Service Law—Rights of Honorably Discharged Veteran op Spanish War.
The rights of an honorably discharged veteran of the volunteer navy of the United States during the Spanish War are governed by Civil Service Law (Consol. Laws, c. 7) § 22, limiting the power of removal from public office, and a veteran may not claim a preference over others by requiring their discharge because of lack of funds, so that he may be retained in his position.
[Ed. Note.—For other cases, see Officers, Cent. Dig. § 97; Dec. Dig. § 68.*]
Mandamus by one Hurlbut against one Cromwell.
Motion for alternative writ denied.

The rights of an honorably discharged veteran of the volunteer navy of the United States during the Spanish War are analogous to those of a volunteer fireman and arise under section 22 of the Civil Service Law and not section 21, which applies to honor

p. 1036
ably discharged soldiers, sailors, or marines in the late Civil War. I am therefore constrained to hold, following Cottam v. City of N. Y., 74 Misc. Rep. 67 , 131 N. Y. Supp. 617 , that the petitioner may not properly claim a preference over other draftsmen in the borough president’s department by requiring their discharge because of lack of funds, so that he may thereby be retained in his position. The procedure that may be pursued by petitioner under section 22 of the Civil Service Law is outlined in Matter of Breckenridge, 160 N. Y. 103 , 54 N. E. 670 . The cases cited by the petitioner refer to veterans of the Civil War, who are expressly preferred by constitutional provision.

Motion for alternative writ of mandamus denied.

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