People ex rel. Wardrop v. Adams — 22 N.Y. St. Rep. 856

Majority

p. 856

The People ex rel. William Wardrop, App’lt, v. John P. Adams, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

Municipal corporation—Discontinuance of office—Veterans — Laws 1887, Chap. 708.

An honorably-discharged veteran of the Union army was removed from the position of lamp clerk in the city of Brooklyn for the reason that such position was abolished on economical grounds, and its duties attached to an existing office which was held by a person not a veteran. Held, that such removal, being in good faith, was not in violation of chapter 708, Laws of 1887, which provides that veterans of the war of the rebellion, holding positions in the city of Br'ooklyn, shall not be removed from such position, except for good cause after a hearing, and that such persoh shall hold office during good behavior.

Appeal from a decision of the. special term, Kings county, denying the petition of the relator for a writ of mandamus to compel John P. Adams commissioner, of the department of city works in the city of Brooklyn to reinstate the relator in the position of lamp clerk in such department, such position having been abolished by the defendant. '

Sidney Williams, for relator; Almet F. Jenks, for resp’t.

—The relator is an honorably-discharged veteran from the Union army. He held the position of lamp clerk in the department of city works in the city of Brooklyn.

There was no cause for his removal from his position, but the commissioner abolished the position upon economical grounds, and attached its duties to the position of assistant notice and complaint clerk. This clerk was an existing officer at the time of the change, and he has since performed the duties which were done by relator, as well as those done by the notice and complaint clerk before the re-organization of the office. There is no claim that the commissioner did not act in good faith. Was there a removal of an officer without cause assigned and without notice?

The court of appeals in Phillips v. The Mayor ( 88 N. Y., 245 ), held that the right to hold office during good behavior did not prevent the discharge of a clerk discharged without a hearing where the clerkship was abrogated.

In the case of Langdon v. The Mayor ( 92 N. Y., 427 ), it was held that a clerk who held office during good behavior could be discharged without notice when the duties were so diminished that the services of the clerk were no longer

p. 857

needed. The claim is not well founded that the entire office as reconstructed should have been given to relator. If he was properly discharged because his office was not needed, he had no claim to be appointed to the office of complaint clerk. No reason is given other than the fact that the complaint clerk is not a veteran. The spirit of the act in respect to veterans (Chapter 708, Laws of 1887), does not require that if an office is abolished, the incum bent, if a veteran, shall displace another officer who is no such.

The order should be affirmed, with costs.

All concur.