People ex rel. Lawson v. Coler

In August, 1898, the relator was an inspector in the bureau for the collection of city revenue and markets for the borough of Brooklyn in the finance department of the city of New York. He had been appointed to this position as the result of a competitive examination. On August 12, 1898, he was notified by the assistant superintendent of markets in the borough of Brooklyn to appear before the comptroller on the L5th day of that month, and answer charges for incompetency in Wallabout Market. A copy of these charges had been delivered to him on the same day. He was accused of incompetency in four respects; (1) In having failed to comply with the request of the chief clerk to have his book .balanced in July early enough to give ample time to prepare the August receipt book; (2) in presenting an incorrect book to the assistant superintendent of markets, showing a deficiency of $30, and in being confessedly unable to balance said book; (3) in having failed to have it balance correctly after having had it in hand eight days for that purpose; and (4) in presenting his daily statement, prepared in different hands, showing that others made out his reports. The return shows that a hearing was had before the deputy comptroller of the city of New York on August 15, 1898, at which the relator was questioned in regard to the several specifications already mentioned, and was apparently allowed to explain the same as fully as he desired. He admitted that his book showed a, deficiency of $30„ and that he was unable to balance it. He could not remember whether it had been returned to him to have it balanced correctly, and he had kept it eight days over time, or not. He acknowledged that some of his reports were written by persons other than himself. He was requested to add up in his book the items which he had collected thus far in the

The only condition precedent to the right of the comptroller to remove the relator was that he should have an opportunity to make an explanation. Tlje statute prescribing this condition is chapter 186 of the Laws of 1898, the thirteenth section of which provides that, “if a person holding a position subject to competitive examination in the civil service of the state or of a city shall be removed or reduced the reasons therefor shall be stated in writing and filed with the head of the department or other appointing officer, and the person so removed or reduced shall have an opportunity to make an explanation.” It is now settled that this statute applies to the city of New York. People v. Dalton, 158 N. Y. 175 , 52 N. E. 1113 . The relator claims, however, that he is also protected from removal, except upon cause shown, after a hearing had, under chapter 577 of the Laws of 1892. That act, it is true, does restrict the power of removal in the case of volunteer firemen “who shall have served the time required by law in the volunteer fire department of any city, town or village in' the state, of who shall have been a member thereof at the time of the disbandment of said volunteer department.” The allegations of the petition do not suffice to show that the relator comes within the class thus specified. The only averment on the subject is “that petitioner is a volunteer fireman, and was a member of Hose Company No. 31 of the city of New York, now borough of Manhattan.” There is no allegation that he has served the time required by law in the volunteer fire department, or that he was a member thereof at the time of its disbandment. The act of' 1898, in providing that the person whose removal is contemplated shall have an opportunity to make an explanation, implies that, if the explanation disproves the existence of the supposed reasons for removal, the accused person will be allowed to retain his position. Whether, if it should appear in such a proceeding ■ as this that an explanation' had been offered which clearly ought to have been accepted by the superior officer as satisfactory, the'statute would give the courts any right to interfere with the determination, need not be decided in the present case, for the act of removal is clearly beyond judi-' cial control when, as here, the reason assigned for it is a good one, and the explanation offered shows that it has a sufficient founda-' tion in fact.

The proceeding is attacked on several other grounds which require to be noticed. The charges were not verified under oath, -no

Determination confirmed, with $10 costs and disbursements. All concur.