People ex rel. Hoeges v. Guilfoyle

Relator, an honorably discharged soldier of the Civil War, was appointed a violation notice server in the department of buildings of the city of Hew York, at a salary of $100 per month, to take effect September 1, 1899. The position is in the classified service of the municipal civil service, and the appointment was made for a probationary term of three months, as provided by rule 35 of the municipal civil service rules. He was dismissed on or about the 15th day of ¡November, 1899, during the probationary period, for alleged incompetency, without notice, and without opportunity to render an explanation, or trial of any kind. Relator sent a written request to

It is undoubtedly the rule that during the probationary period the relator could not be removed, except upon charges and opportunity given for a hearing. People v. Kearny, 164 N. Y. 64 , 58 N. E. 14 . His removal was therefore illegal. He had no right, however, to any fixed term of retention in his employment beyond the probationary period, which expired within 15 days after the unlawful removal. If reinstated, therefore, it could only be for such period, and the only right which he could obtain would be his salary covering that time; for at the expiration of his term of probation his services might be dispensed with without trial or hearing, assuming that the person vested with the power to dispense with the services acted in good faith in dismissing the relator at that time. People v. Coler, 56 App. Div. 171 , 67 N. Y. Supp. 652 . The most, therefore, to which the relator is presently entitled, would be his restoration for the unexpired term of the probationary period. It is not necessary, however, that we now determine just what the status of the relator would be if he were presently reinstated, as we think this order must be reversed on the ground of laches in making application for reinstatement. He was dismissed November 15, 1899, and took no steps whatever to secure his restoration until the 17th day of November, 1900, when he wrote a letter to the defendant requesting restoration to his position and payment of Ms salary. Upon failure of the defendant to comply with such demand, he commenced this proceeding on the 27th day of November, 1900,—over a year after his removal. The excuse which is offered as an answer to this delay is entirely insufficient. Assuming that he might safely wait for a judicial construction of rule 35 and his rights thereunder, such construction was given by tMs court in March, 1900. People v. Kearny, 49 App. Div. 125 , 62 N. Y. Supp. 1097 . ■ By virtue of that decision the relator was notified of his rights in the premises, and, if he might have safely waited until that time, it is evident that he would be required to move promptly for the protection of Ms rights, or lose the same by delay. Nothing contained in People v. Dalton, 52 App. Div. 371 , 65 N. Y. Supp. 342 , is authority in excuse of relator’s laches. Therein decisions made by this court were overruled by the court of appeals. The relator had begun his proceeding for reinstatement when the later decision was handed down by the court of appeals, showing that the petition upon which he relied was defective; and the question presented was whether he was called upon, under a doubtful question of law, to withdraw his appeal from the court of appeals, and institute a second proceeding, or whether he might prosecute the appeal in the court of appeals to a decision without being chargeable with laches in so doing. This court held that he might and that his second application should not be defeated for that reason. The discussion in that case shows that the law, by reasonxof conflicting views, was in a very embarrassing

The order should therefore be reversed, with $10 costs and disbursements, and the application be denied, with $10 costs. All concur.