People ex rel. Kastor v. Kearny

The relator- was appointed senior cleric in the department of public buildings, lighting, and supplies of the city of New York on June 12, 1899, commencing the performance of his duties on the following day. On June 17th he was discharged summarily, without charges or an opportunity to be heard. He brought proceedings for reinstatement, and, after a determination in his favor by the court of appeals ( 58 N. E. 14 ), was reinstated on October 23, 1900. On January 21, 1901, he was again discharged as of that date. On January 30, 1901, he was notified that the position he held would be abolished and his services dispensed with on January 31, 1901; and on February 1,1901, he was informed by the respondent that the letter of January 30th, announcing the abolition of the office, was the governing notice of dismissal, and that salary would be paid for the whole month of January. Proceedings for reinstatement were again instituted, resulting in an order under which the relator was again reinstated in office on May 24, 1901. On August 13, 1901, the relator was notified that the probationary term of six months for which he was appointed as senior clerk would expire on August 20th, and that his services would not be required after that date. He again seeks reinstatement.

Section 124 of the Greater New York charter, treating of regulations to be made by the municipal civil service commissioners, provides that:

“Such regulations shall among other things, provide * * * for a period of probation before an appointment or employment is made permanent.”

“All employments in positions under any of the. schedules, except Schedule G, shall be provisional, and such provisional service shall ' continue six months. * * * If during that period (subject as to policemen and firemen to regulation 55) the conduct and character of the appointee are found satisfactory to the appointing officer, he shall at the close thereof receive an appointment, but otherwise his employment shall cease.”

The relator, being a regular clerk, was protected by section 1543 of the charter, which provides that no regular clerk or head of a bureau shall be removed "until he has been allowed an opportunity of making an explanation,” which implies that removal must be upon charges. It has been held by the court of appeals that this section applies to a clerk while serving his probationary period. People v. Kearny, 164 N. Y. 64 , 58 N. E. 14 . And it applies, of course, after his appointment becomes permanent. It follows that if an appointing officer is dissatisfied with an employé, and desires to dispense with his services, without, however, preferring charges against him, there is just, one day upon which he can dol so, and that is upon the expiration of the probationary period.' The precise question involved in this application is, then, when, as to the relator, the probationary period ended,—whether it was at the expiration of six calendar months from the date of his first appointment, or after he had actually performed the duties of his office for the number of days which, when added together, would amount to six months of actual service. This question does not seem to have been decided by any appellate court. In People v. Coler, 56 App. Div. 171 , 67 N. Y. Supp. 652 , a clerk who was serving a probationary term was removed three days before that term ended. A writ of mandamus directing his reinstatement was issued at special term, and, of course, was so issued after the probationary term had expired. The appellate division said:

“The effect of this writ is not to reinstate the relator as a probationary appointee, but to constitute him a permanent employé, with full right to the position and the emoluments thereof.”

The implication from this sentence is that the writer of the opinion conceived that the probationary period was not suspended during the days that the relator in that case was prevented by his discharge from actually performing the duties of his position. The decision of the case did not, however, turn upon that question, and it cannot, therefore, be said that the court decided it.

In People v. Guilfoyle, 61 App. Div. 187 , 70 N. Y. Supp. 442 , the court expressly declined to pass upon the question. There the relator had also been discharged before the expiration of the probationary period, and reinstated by order of the special term after that period had expired. The court said:

“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 loches in making application for reinstatement.”

Motion granted, and writ issued.