People ex rel. Hicinbotham v. Purroy — 31 N.Y. St. Rep. 934

Majority

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The People ex rel. Alexander Hicinbotham v. Henry D. Purroy et al., Com’rs, etc.

(Supreme Court, General Term,, First Department,

Filed May 16, 1890.)

Headnote

1. Municipal corporations.—Inspectors op buildings.—Removal.

Section 441 of the consolidation act is not antagonistic to the provisions of §48, and was not intended to restrict the power of the fire commissioners to appoint and remove employees who are not protected by the exceptions contained in the latter section.

2. Same.

Relator, an inspector of buildings, was served with charges and specifications, and notice to appear before the board of fire commissioners. Prior to the time specified in the notice, at a meeting at which two commissioners were present, an order was made removing relator from office. Reid, that they had power to do so, and that there was no irregularity in the proceedings.

Writ of certiorari to review the dismissal of the relator from the position of inspector of buildings in the city of New York.

A. Sleekier, for relator; W. L. Findley, for resp’ts.

The relator was appointed an inspector of buildings in the fire department on the 16th of January, 1888. He continued to hold this position until the 13 th of August, 1889, when at a meeting of the board of fire commissioners at which two commissioners were present he was removed and dismissed from the fire department. The other commissioner was absent from the city when the meeting took place and took no part in the proceedings. The relator applied for a writ of certiorari to review the action of the respondents in his removal.

It is claimed upon the part of the relator that the respondents had no power to remove him except upon charges and specifications and an opportunity to be heard. It would seem that at the time of the initiation of this proceeding this was the opinion of the respondents, because on the 10th of August, 1889, a notice together with charges and specifications in writing were served

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on the relator, which notice commanded him to appear before said board of fire commissioners on the 13th of August at eleven o’clock in the forenoon. The relator was charged with having demanded a bribe in the performance of his official duty.

It further appears that at the time and place mentioned the relator appeared with his counsel and demanded a trial upon said charge, the board having upon the same day, but before the hour named in said notice, made and promulgated an order dismissing the relator from his office.

It would seem that in view of a charge of the nature having been brought against the relator and he called upon to answer the same, that even if the commissioners had the absolute power of removal, as a matter of justice to the relator they should have given him an opportunity to answer the charge, whether legally required to do so or not.

It is urged upon the part of the relator that the fire commissioners claim to have acted by virtue of the authority conferred by § 441 of the consolidation act, Laws of 1882, chap. 410, which provides as follows:

“ An intention to reduce the force and expense of the bureau of inspection of buildings, or the clerical force of the department, shall be deemed sufficient ground for the removal of any officer or employee of said bureau, except the chief officer thereof, and of any clerk of the department. The board of fire commissioners is authorized to abolish any office, clerkship, or employment in the said bureau of inspection of buildings, and they may consolidate the duties of any two or more officers, clerks or employees thereof.”

It is of course clear upon the facts hereinbefore stated that if the power of removal is dependent upon this section, its terms were not complied with and the removal was unlawful. But by examination of § 48 it will appear that the heads of all departments have power to appoint and remove all chiefs of bureaus ex-, cept the chamberlain, as also all clerks, officers, employees and subordinates in their respective departments except as therein • otherwise specially provided, without reference to the tenure of' office of any existing appointee. The section then provides that no regular clerk or head of a bureau shall be removed unless he has been informed of the cause of the proposed removal and has been allowed an opportunity of making an explanation.

Under this section therefore the heads of all departments have an absolute authority to remove every person employed in their ■ respective departments except regular clerks or heads of bureaus, ,and in respect to them a certain procedure must be pursued.

It will scarcely be argued that the fire department is not one of the departments referred to in § 48.

Section 441 is not antagonistic to the provisions of § 48, because an intention to reduce the force and expense of the bureau of inspection of buildings or the clerical force of the department would authorize the removal of any regular clerk or head of a bureau under § 48 and this is all the power that is intended to be conferred upon the commissioners by § 441, and in no manner was

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it intended to restrict their power to appoint and remove employees who are not protected by the exceptions contained in § 48.

Section 46 seems to have authorized a majority of the members of the board to meet and fully discharge thé duty imposed upon them.

There seems to have been no irregularity in the proceedings upon the part of the board of fire commissioners and this court cannot interfere with their removal of the relator.

The writ should be dismissed, without costs.

Bartlett and Barrett, JJ., concur.