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People ex rel. Pettit v. Kane

70 N.Y.S. 982 Court N.Y. Sup. Ct. Decision date 1901-02-13 English

Delivered by TRUAX, J.

Contents

Majority

p. 982
PEOPLE ex rel. PETTIT v. KANE.
(Supreme Court, Special Term, New York County.
February 13, 1901.)

Headnote

1. Municipal Corporations—Charter—City Employes—Removal.
Under City Charter, § 1543, giving the head of a department the power to remove all clerks, officers, employés, and subordinates in his department, without reference to the tenure of office of any such appointee, except that no regular clerk or head of a bureau shall be removed until he has been allowed an opportunity of making an explanation, a mere employé may be removed without being afforded such opportunity to explain.
2. Statutes—Repeal—Civil Service Rules.
A civil service rule, in so far as it undertakes to repeal a statute, is of no force and effect.
Motion by the people, on the relation of one Pettit, against one Kane.
Denied.
Frederick L. Taylor, for relator.
John Whalen, Gorp. Counsel, for respondent.

Section 1543 of the charter gives to the head of a department the power to remove all clerks, officers, employés, and subordinates in his department, except as otherwise specially provided, without reference to the tenure of office of any such appointee, except that no regular clerk or head of a bureau shall be removed until he has been allowed an opportunity of making an explanation. The relator herein is not a regular clerk or head of a bureau. He is simply an employé. Rule 42 of the civil service rules and regulations cannot repeal a statute. So far as it undertakes to repeal a statute it is of no force and effect (People v. Henry, 47 App. Div. 133 , 62 N. Y. Supp. 102 ), and so the federal courts have held in reference to a like rule of the United States civil commission. See Carr v. Gordon (C. C.) 82 Fed. 373 , and Flemming v. Stahl (C. C.) 83 Fed. 940 .

Motion denied, with costs. Settle order on notice.

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