p. 128People ex rel. O’Connor v. Adams, Commissioner.(Supreme Court, General Term, Second Department.Headnote
Oeetces and Officers—Employment of Discharged Soldiers.Laws N. Y. 1887, c. 464, provides that honorably discharged Union soldiers shall be preferred “for appointment and employment. ” Pour temporary clerks were op-« pointed, and only one was a soldier, and, the business falling ofi, the soldier was discharged, and the others were retained. Held, that under the act the soldier should have been discharged last of the four temporary clerks.
Appeal from Kings county court.
Application of Charles H. O’Connor for a writ of mandamus commanding John P. Adams, commissioner of the department of city works, to restore him as a clerk in said department. Prom an order denying the motion, the relator appealed.
Argued before Barnard, P. J., and Dykman, J.Sidney Williams, for appellant. Almet F. Jenks, for respondent.
The relator is an honorably discharged Union soldier. He passed the examination of the civil service commission of the city of Brooklyn, and was put at the head of the eligible list. In May, 1888, the department of public works of the city made a requisition for the services of four temporary clerks. The names of the relator and of three others were cited, who were all appointed. Relator was the only soldier. The papers showed that in the month of May in each year the water-rates are payable, and that the necessities of the public business require the services of temporary clerks. To meet this difficulty the relator was appointed; and in the month of June, 1888, the business had returned to its usual volume, and could be performed by the regular clerks. The relator was discharged because the temporary office had become useless. By the terms of the civil service act he was put at the head of the eligible list again. Ho appointment for permanent employment has been since made, hut the clerks who were appointed to the temporary clerkship with the relator have been retained under that appointment. If all these temporary clerks had been discharged, the case would
p. 129fall with the case recently decided.
People v.
Adams, 4 N. Y. Supp. 522 . It was held in that case that the city was not bound to continue an employment which had become a sinecure. The present question is different. Eour clerks are appointed to a temporary position, and for no definite term. The soldier had the preference on the appointment. Chapter 464, Laws 1387. The words of the act are broader than the appointment only. Soldiers shall be preferred for “appointment and employment.” The legislature by this language intended that the relator should be discharged last of the four temporary clerks, when he was the only soldier on the list. The order should therefore be reversed, with costs and disbursements, and motion granted, with §10 costs.
Dykman, J., concurs.