People ex rel. Lazarus v. Coleman

Before considering this appeal, we tnust determine a motion made by the respondents to dismiss it. The grounds of the motion are that La France, one of the respondents,, has ceased to be a fire commissioner of the city of Elmira; that no demand for the relief sought has been made of Smith, who has' been appointed fire commissioner in place of La France; and that there has been no change of parties. It is claimed that the proceeding has abated by reason of this change in the personnel of the board of fire commissioners. While the proceeding is, in form,, against the individuals constituting the board, it is really against the board itself; and the relief sought is a writ commanding the board to restore the relator to duty,, and reinstate him in his position as first assistant engineer of the fire department, from which he claims to have been unlawfully removed. The board of fire commissioners is composed of the mayor of the city and two other persons. The term of office is two years. Upon the expiration of a term of office, or within 20 days prior thereto, the mayor, by and with the consent of' the common council, appoints the successor. Laws 1894, pp. 145G, 1457, c. 615, §§ 160, 161. The terms of office expire at different times. It i.s therefore a continuing body, and a writ of mandamus running against the board to reinstate the relator would be effective to accomplish that result, whether the board was composed of the same persons who passed the resolution resulting in his dismissal, or not. If the writ may operate upon the board itself, instead of upon the individuals composing it, the fact that the term of office of one out of three of such individuals has expired, and another person has been chosen to fill his place, should not result in the abatement of a proceeding to obtain such writ.

In People ex rel. Wooster v. Mahar, 64 Hun, 408 , 19 N. Y. Supp. 758 , the General Term in this department upheld the granting of a writ of mandamus against the mayor of the city of Albany after the term of office of the defendant Mahar, the mayor in office at the time of the commencement of the proceeding, had expired, and ,his successor had assumed the duties of the office. The decision was-

“We cannot accede to the proposition that proceedings in mandamus abate by the expiration of the term of office of the defendant, where, as in this case, there is a continuing duty irrespective of the incumbent, and the proceeding is undertaken to enforce an obligation of the corporation or municipality to which the office is attached. * * * The proceeding may be commenced with one set of officers, and terminate with another, the latter being bound by the judgment”

The respondents cite, in support of their motion to dismiss, the cases of People ex rel. Broderick v. Morton, 156 N. Y. 136 , 50 N. E. 791 , 41 L. R. A. 231 , 66 Am. St. Rep. 547 , and People ex rel. Hatch v. Lantry, 88 App. Div. 583 , 85 N. Y. Supp. 193 . The Broderick Case was an appeal from a final order of the Appellate Division reversing an order of the Special Term refusing a writ of mandamus, and granting a peremptory writ against Frank S. Black, Timothy E. Woodruff, James M. E. O’Grady, and Frederick P. Easton, commanding them, as trustees and superintendent of public buildings, to reinstate the relator in his employment as laborer in the capítol building. The proceeding was commenced against Morton, Saxton, and Fish as trustees, and Easton as superintendent of public buildings, when Morton was Governor, Saxton Lieutenant-Governor, and Fish Speaker of the Assembly; and the Appellate Division granted the writ, to run against their respective successors in office. The order granting the writ was reversed by the Court of Appeals. The Hatch Case was one against the commissioner of correction in the city of New York to secure the reinstatement of the relator in the department of correction, from which he claimed to have been unlawfully removed, and where, following the Broderick Case, it was held that the proceeding abated upon the defendant ceasing to be such commissioner, and the appointment of his successor. Both' Broderick and Hatch, the relators in the two cases referred to, were veterans of the Civil War, and the cases arose under the acts protecting such veterans from wrongful removal from the public service. Chapter 312, p. 377, Laws 1884, as amended by chapter 716, p. 1797, Laws 1894. In the opinion of the court in the Broderick Case it is said:

“The act charged against the former officials was a misdemeanor, and punishable as such, and they were liable individually in damages to the party aggrieved. The delinquency charged is personal, and does not involve a charge against the state. * * * In cases in which the delinquency charge is personal, the petition for a writ of mandamus abates upon the death, resignation, or termination of office of the official charged, unless it is preserved by statute."

The relator in the case at bar is not a veteran, and, if he was unlawfully removed, it was because the reasons for his removal

The relator was removed from his position of first assistant engineer in the Elmira fire department February 1, 1904, by the board of fire commissioners of that city, without any charges of inefficiency or incompetence being made against him; nor does it appear that any reasons for his dismissal were stated in writing or filed, or that he was given an opportunity to make an explanation. He applied to the court at Special Term for a peremptory writ of mandamus, requiring such board to restore him to duty and reinstate him as such engineer, and for such other relief as may be just. From an order denying his application, this appeal is taken. In his petition he alleges his appointment as a member of the fire department pursuant to the civil service law and rules, after a competitive examination thereunder'; that he was thereafter promoted to foreman, after a like examination, and, as such, was designated by the board as first assistant engineer; and that on the 25th day of January, 1904, he was served with a notice, signed by the city clerk, that he was "discharged from the Elmira Eire Department, to take effect at the close of your (his) duties on January 31,1904, in accordance with the following resolution duly passed at a meeting of the fire commissioners held January 22, 1904: * * Resolved, that on and after February 1, 1904, the following offices, to wit, first assistant engineer and fifth assistant engineer, be and the same are hereby abolished.’ ” It also appears that, in addition to such resolution, the board of fire commissioners at such meeting passed resolutions changing the designation of second, third, and fourth assistant engineers to captains, and establishing the offices of first district chief and second district chief. The relator further alleges in his petition that:

“Such changes as were made hy the foregoing resolutions were not in the interest of economy, for the reason that the number of officers in said department were not reduced in number, and the amount of salary or wages was increased in its aggregate amount over that then existing; that said removal was not made in'good faith, but was merely colorable, and made for the purpose of effecting the discharge of your petitioner by indirect means, and in violation of the law and of civil service rules, because of his political faith and affiliations; that the duties prescribed for the office attempted to be created by such resolution, to wit, first district chief, are substantially the same as the duties which were discharged by your petitioner as first assistant engineer.”

But the allegations referred to, except the one that the changes were not in the interest of economy, were denied in the answering affidavits. Thus there was presented an issue of fact for trial, preliminary to the determination of the question as to whether the relator was or was not entitled to a peremptory writ; and, instead of denying the application, an alternative writ should have been allowed. Code Civ. Proc. § 2070; People v. R., W. & O. R. R. Co., 103 N. Y. 95 , 8 N. E. 369 ; People ex rel. Del Mar v. St. L. & S. F. R. Co., 47 Hun, 543 .

The order appealed from should be reversed, with $10 costs and disbursements, and an alternative writ of mandamus granted. All concur.

SMITH, J., not voting.