Hyperlawhypertext legal database People ex rel. Balch v. Mayor of the Yonkers 39 N.Y. St. Rep. 11

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People ex rel. Balch v. Mayor of the Yonkers

39 N.Y. St. Rep. 11 Court N.Y. Gen. Term Decision date 1891-05-11 English

Delivered by *12 Pratt, J.

Contents

Majority

p. 11
The People ex rel. Galusha B. Balch, App’lt, v. The Mayor, etc., of the City of Yonkers, Resp’ts.
(Supreme Court, General Term, Second Department,
Filed May 11, 1891.)

Headnote

Veterans—Laws 1887, chap. 464—Health officer within the exceptions.
Section 1 of chap. 464 of the Laws of 1887, providing that “in every public department and on all public works, * * * and of all the cities, towns and villages thereof, * * * wherever they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment and employment, * * ® provided they possess the business capacity necessary to discharge the duties of the position involved,” does not apply to positions independent and separate and not subordinate to any other department of the city government, as health officer of the city of Yonkers.
Appeal from an order of the special term, Westchester county, dismissing a writ of certiorari._
John Gibney, for app’lt; J. F. Daly, for resp’ts.

—This court held, at general term that the act upon which the relator now relies did not apply to heads of departments or chief officers in cities and villages, but was intended to protect vetenars in subordinate offices. 29 N. Y. State Rep., 286.

This is decisive of the present case, as the relator’s petition was to be appointed to an independent and separate department of the city government.

It is true the question raised in that case related to the removal of a veteran, but the same principle is applicable.

The office of health officer under the village charter of Yonkers is distinct and independent' and not subordinate to any other officer or department.

If these views are right it is not important to determine whether the ‘remedy sought by the relator was proper, as in no view could the court grant him any relief.

The statute has been so fully and often discussed that it is not necessary that any further comment should be made. See 26 N. Y., State Rep., 54; 29 id., 723; 30 id., 52, 614; 54 Hun, 16 ; 57 id., 362 ; 32 N. Y. State Rep., 129.

Order affirmed, with costs.

Barnard, P. J., concurs.