People ex rel. Murphy v. Howell — 37 N.Y. St. Rep. 181

Majority

p. 181

The People ex rel. John Murphy, Resp’t, v. James Howell et al., Trustees, App’lts.

(Supreme Court, General Term, Second Department,

Filed February 9, 1891.)

Headnote

Veterans—Removal—Bill oe particulars.

Relitor, an honorably discharged veteran, was removed by the defendants from his position as conductor without a hearing. The return to a mandamus directing his reinstatement stated that he had waived his privilege and had been discharged for good cause. Held, that the particulars of such cause were not in issue and that a bill of particulars thereof was unnecessary; that if he did no,t waive his privilege the best of causes would not justify relator’s removal without a hearing.

Appeal from order requiring defendants to furnish a bill of particulars of relator’s alleged misconduct.

Belator, a veteran soldier, was removed from his position as a trainman on the New York & Brooklyn Bridge, without cause or hearing, and civilian employes of like position and employment retained in service.

On relator’s application an alternative mandamus was allowed against the bridge trustees. Their return thereto sets up a defense in the following language:

That the relator John Murphy was discharged from the employ of the trustees of the New York & Brooklyn Bridge, October 18, 1889, for conduct prejudicial to discipline and subordination of trainmen employed by the said trustees, and that at the time of such discharge the said relator did not claim to be a veteran or an honorably discharged soldier, sailor or marine of the United States in the late war of the rebellion, and that the fact that relator was such honorably discharged Union soldier of the late war of the rebellion was not at the time of the discharge of the relator known to either of the said defendants, nor did the said relator at the time of his discharge, or at any time pending the same or until long after the same was consummated and the said relator discharged from the employ of the said trustees, make any claim that he was such honorably discharged veteran soldier, sailor or marine of the United States, and that the said relator by such omission to make such claim at the time his discharge was pending to the defendants or either of them waived whatever privilege, right, claim or title he may have had pursuant to the provisions of chap. 119 of the Laws of 1888, were the said claim well founded in fact

p. 182

On relator’s motion an order was granted at special term that the bridge trustees furnish a bill of the particulars of such alleged misconduct, or stipulate not to offer evidence of such alleged misconduct at the trial.

Jas. C. Bergen, for app’lts; Sidney Williams, for resp’t.

The relator by statute, having been a soldier in the war of the rebellion and honorably discharged, was entitled to be notified of all charges against him before his removal from the position of conductor on the Brooklyn bridge. Chapter 119, Laws of 1888 ; Brooklyn city charter, chap. 583, Laws of 1888, title 22, § 29 ; chap. 708, Laws of 1887.

Otherwise the right of employment and discharge of employes is given to the trustees. Chap. 300, Laws of 1875.

The relator was discharged without a hearing, and therefore the discharge was illegal unless the relator waived his privilege. The return avers this defense; that the trustees did not know that the relator had been a Union soldier, and that they discharged him for good cause. The particulars of that cause are not an issue in the proceeding. If the trustees discharged him without cause he has no remedy if he waived his privilege as a soldier. If he did not waive it the best of causes to be proven on the trial will not justify the removal without a hearing before the discharge.

The order for a bill of particulars was unnecessary and should be reversed, with costs and disbursements.

Dykman and Pratt, JJ., concur.