Pratt v. Phelan

From the affidavits filed by the relator in this matter it appears: That in February, 1884, he was appointed, and had since up to January 22, 1900, been continuously employed as an assistant engineer at the main pumping station of the waterworks system of the city of Troy. That there were five other assistant engineers employed at such station, each of whom performed like duties and received the same cqmpensation, viz., $75 per month, as the relator did. That such men worked in shifts of eight hours each, two of them working together in each shift. That the relator, when so appointed, was an honorably discharged soldier from the army of the United States, having served in the Union army during the war of the Rebellion. That in January, 1900, the village of Lansingburg was annexed to and became a part of the city of Troy, and its system of waterworks passed under the control of the commissioner of public works of that city. That in said village was a pumping station, which ivas used to assist and supplement the gravity system of works which was designed to, and usually did, supply that village with water. That it was in fact an “emergency station,” used only during those portions of the year when the scarcity of rainfall reduced the natural supply and made the pumping of water necessary. That on the 22d of January, 1900, the defendant removed this relator to such “emergency station” from the permanent one, where he had been continually employed since 1884; and he there worked as an assistant engineer, with five others, until March 13th, when that station was closed because the regular gravity system became again sufficient to furnish the necessary water. His name was then taken from the pay rolls, and he was discharged. That the pumping station from which he was so removed in January has continued at all times since

Assuming that the foregoing statements are true, it would, in my opinion, follow that the relator should be reinstated to the position of assistant engineer, even though some other assistant engineer, not a veteran, had to be discharged. From such facts we have this situation presented: The city needs for constant .employment at its main pumping station six assistant engineers, and occasionally at an auxiliary station six more. The work at each station is similar, the compensation the same, and evidently the men can be transferred and worked interchangeably at each. But, like clerks employed in the same department, those assistant engineers are all occupying the same position, and where, for any reason, it becomes necessary or economical to dispense with the services of either or any of them, under the provisions of the veteran’s act the veteran is entitled to be preferred as an employé, and those not under the protection of that act are to be first discharged. This proposition seems to be distinctly settled by the decision in Stutzbach v. Coler, 168 N. Y. 416 , 61 N. E. 697 , and an extended discussion and analysis of the statute is unnecessary. I deem these several assistant engineers as being employés of the department of public works in the city of Troy, generally, and when, for any reason, that force becomes larger than is needed, the situation is exactly similar in principle to that passed upon in the Stutzbach Case, and hence is controlled by that case.

It is contended on the part of the defendant that this relator is not protected by the statute in question, because he had, by the present charter of the city of Troy, viz., Laws 1898, c. 182, been legislated out of his position; and that, therefore, his employment, under the provisions of section 107, was at the will of the commissioner of public works. That act, known as the “Act for the government of cities of the second class,” became operative as to the city of Troy on January 1, 1900, and by section 107 it provides that the commissioner of public works “shall appoint, to hold office during his pleasure, a deputy and such other subordinates as may be prescribed by the board of estimate and apportionment.” This, it is urged, removed from the relator whatever protection he might have previously had under the veteran act, and hereafter gives the commissioner the power to discharge any veteran he may thereafter employ, without

It is further objected that, because the commissioner did not know that the relator was a veteran when he was discharged, he is not now entitled to be reinstated. That objection is met and settled against the defendant by the decision in the Stutzbach Case. •

Upon the record before us, however, it is not conceded that all of the above statements set forth in the moving affidavits are true. Thus the defendant, by answering affidavits, puts in issue the question whether the relator is an honorably discharged soldier within the provisions of the veteran’s act; also denies that he was discharged, claiming that he was merely suspended. Moreover, the petitioner further charges that his remoAral to the emergency station Avas done in bad faith, and with the design of ultimately removing him. This is denied. Under this situation the relator is not entitled to a peremptory mandamus. Evidently the court must be informed as to that was actually done towards discharging the relator, and as to the truth of all the claims upon which he bases his right to reinstatement. But the notice accompanying the moving affidavits asked for an alternative writ in the event that the claims made in such affidavits were contradicted, and the order appealed from determines that he is entitled to neither. In this, I think, there was error. As shown above, if the facts, as claimed by the relator, existed, he was entitled to a mandamus to reinstate him; and, upon their being de

It results that the order should be reversed, with ¡pío costs, and the application for an alternative writ granted. All concur.