People ex rel. Uhrie v. Gilroy — 39 N.Y. St. Rep. 526

Majority

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The People ex rel. George Uhrie, Resp’t, v. Thomas F. Gilroy, Com’r, App’lt

(Supreme Court, General Term, First Department,

Filed June 26, 1891.)

Headnote

1. Veterans—Municipal corporations—Special employe op, not entitled TO PREFERENCE.

A. person appointed by the commissioner of public works of the city of New York as “ inspector on the works of laying mains of the Standard Gas Light Company, by whom you will be paid at the rate of $100 per month," is not taken into the service of the department as a general employe, but for a particular purpose, and in connection with a. special work, and upon its completion he is not entitled to be continued in the department’s service, under chap. 464 of the Laws of 1887, giving preference in employment to veterans, and the fact that he was allowed to do other work for a limited time is immaterial.

2. Same—Mandamus—Variance in writs.

Upon the application to reinstate such employe, the alternative writ required the commissioner to show cause why the relator should not be reinstated as inspector of gas mains, and the peremptory writ was to require his reinstatement as inspector on the work of laying mains, if said work is still being done, or to be done. Held, that there was a fatal variance between the alternative and peremptory writs.

Appeal from order of special term.

William H. Clark, corporation counsel, Edward H. Hawke, Jr., and Charles J. O'Neil, for app’lt; Louis J. Grant, for resp’t.

—This is an appeal by the commissioner of public works of the city of New York from an order directing that a peramptory writ of mandamus issue to reinstate the relator “ to the position of inspector in the work of laying mains or service pipes by the Standard Gaslight Company if said work is still being done or to be done.” The order was entered after a trial had on the return of an alternative writ issued in November, 1889, by which the respondent was required immediately on re-receipt of that writ to reinstate the relator ■“ to the position of inspector of gas mains in your department from which he was dismissed on January 26, 1889, or that you show cause why the command of this writ should not be obeyed,” etc. By consent of parties the jury was discharged from the consideration of the case and the judge decided in favor of the relator and subsequently on the presentation of the record to the special term the order now under examination was made.

The material facts developed on the trial are the following, viz.: the relator is an honorably discharged veteran of the war of the rebellion; on May 1, 1888, he received an appointment, in writing from the then acting commissioner of public works as follows, viz.: “You are hereby appointed Inspector on the work of laying mains of the Standard Gaslight Company, by whom you will be paid at the rate of $100 per month.” On January 26, 1889, he was relieved from service by the following notice in writing; “ You are hereby notified that your services on the work of the Standard Gaslight Company will not be required after this date.”

It will thus be seen that the employment of the relator was

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limited to a particular purpose and in connection with a special work. He was not taken into the service of the department of public works as a general employee to be assigned to duty anywhere or on any work as an inspector, but his employment was restricted to one particular thing and' no obligation rested upon the respondent to pay him a dollar or vary or transfer his service in any way. If he were a general employee as inspector as the alternative writ assumes, he would come within the preference given by the act of 1887 (nothing is claimed under chap. 119 of the Laws of 1888), but on the cessation of the work in connection with which he was first employed, he could not have insisted upon being retained to do other work. He had no right to continuous employment by the department when the special purpose of his appointment ended.

There was neither an actual contract, nor a presumed intention that such should be the case. The work of laying the mains of the Standard Gaslight Company stopped in November, 1888, and then the relator was transferred to other work of inspecting the house service connections of that company; but that bound neither the city nor the company to keep him in that position. He was not supplanted to make way for a person not a veteran, but, on his removal, one already in the general service of the department was designated to do that work. There was nothing in the appointment which required his retention; he could not be put on the pay roll of the department, for the city was under no obligation to him, and because he was allowed to do other work for a limited time for the Standard Company, he did not acquire a vested right to do that other work continuously. The Case of Sullivan, 55 Hun, 285 ; 28 N.Y. State Rep., 566, on which the relator mainly relies, has no application whatever. If differs, loto codo, from this. Sullivan was a laborer engaged by the department of public works and paid by the city, and was not merely designated "by the department and paid by a private corporation, as is the situation here. He was engaged in the public work.

There is still another reason why the court cannot be maintained. There is a'fatal variance between the alternative and the peremptory writs. By the former the respondent was directed to restore the relator to a specific position as an employee of the department. The peremptory writ requires reinstatement as an inspector of special work, provided it remains to be done. It is a rule of law that the peremptory must follow the alternative writ, People Supervisors of Dutchess, 1 Hill, 50 ), although in People ex rel. Green v. Dutchess & Columbia R. R. Co., 58 N. Y., 152 , where the authorities are examined, the broad statements of the text writers are limited. What the relator demanded and what was clearly set forth in his petition and that upon which issued was joined related to his general employment by the department as an inspector. His affidavit recites, “ That on May 3, 1888, deponent was duly employed in the department of public works of the city of New York to serve as inspector of gas mains, and served as and served in such capacity until,” etc. The answering affidavit •of the commissioner sets forth that he did not discharge the relator

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from any position in the department as he was not an employee of the department, etc., and then states the exact status of the relator as to the work.

We think, the facts being clearly proven, the respondent was entitled to a dismissal of the writ for the relator could not have accorded to him what he claimed. The peremptory writ gives him something radically different and we cannot on a mandamus proceeding render judgment in favor of both parties.

The order must be reversed, with costs.

Yan Brunt, P. J., and Barrett, J., concur.