People ex rel. Thornton v. Board of Public Parks — 43 N.Y. St. Rep. 525

Majority

p. 525

The People ex rel Thomas Thornton, Resp’t, v. The Board of Public Parks, App’lt.

(New York Common Pleas, General Term,

Filed February 1, 1892.)

Headnote

1. Veterans—Laborers—Discharge.

Under chap. 464, Laws 1887, a veteran soldier serving as a laborer must be retained while any laborers are employed.

p. 526

2. Same. .

The transfer of jurisdiction over the annexed district where the veteraa was at work from the park department, and consequent suspension of work by the department in- that district, with a failure of funds for such work, will not justify his discharge so long as there is work to he done in, other sections of the city by the department and other laborers are retained to perform it.

Appeal by defendant from the final order directing the issu■ance of a peremptory writ of mandamus, requiring the reinstatement and re-employment of the relator, Thomas Thornton, by the board of public parks, for the reason that the relator being an-honorably discharged Union soldier was entitled to preference of employment.

Wm. H. Clark {Theodore Connoly and Terence Farley, of counsel), for app’lt; G. M. Van Hoesen, for resp’t.

The finding of the trial judge that the relator Thornton had capacity to discharge the duties of a laborer in the parks was amply sustained by the evidence. He had been employed in the department of parks for seven years down to December 30, 1890, when he was discharged. Mr. Parsons, the superintendent of parks, testified that he was capable of doing his work, and Mr. Huss, the foreman of the department, testified in effect that Thornton could work as good as any when he was watched, although he was reported at other times to go as slow as he possibly could. There was 'evidence pro and con upon the question whether Thornton was idle and shirked his work, and some attempt was made, which wholly failed, to show that he was guilty of stirring up dissension; but the trial judge found in his favor on all these issues, and the defendants have not excepted to- • such findings.

In view of the long service of Thornton in the department, of the absence of any formal charges against him while so employed, and of the fact of his dismissal being placed upon the express ground of want of work and failure of appropriation, the trial judge was undoubtedly justified in disregarding the rather weak evidence adduced by defendant against the relator’s character as a. conscientious workman.

The discharge of Thornton was not justified by lack of work or lack of money. He was a regular employee of the department in and about the city parks, and in the fall of 1890 was sent to-the “Annexed District,” of which the department then had charge. The jurisdiction over that section was transferred by authority of thé legislature to a commissioner of street improvements, and the appropriation for work in that section was exhausted ; but there was money and work for laborers like Thornton in other sections of the city of which the park department, had control; and when they discharged Thornton, on December 30, 1890, they retained in their employment about a hundred and! fifty laborers, and immediately after his discharge began to employ many more. These facts were found by the trial judge upon evidence which leaves no question of the propriety of his decision. As Thornton is an honorably discharged Union soldier

p. 527

.lie was entitled by law to be preferred, not only for appointment but employment (Laws of 1887, chap. 464), and preference in employment requires that the veteran soldier serving as a laborer should be retained while any laborers were employed, The People ex rel. O'Connor v. Adams, 53 Hun, 141 ; 25 St. Rep., 351 , for the act charges the public officials with a faithful compliance with its terms, “ both in letter and spirit.”

We are referred to the case of The People ex rel. Moore v. Gallup and others, Lawrence, J., Sp. T. Sup. Ct., First Dept., May 11, 1891, as authority for sustaining the defendant’s contention that the transfer of jurisdiction in the Annexed District from the park department, and the consequent suspension of work in that territory on the part of the department with the failure of funds for such work, justified the discharge of all employees of the department working in said district. But there was absent in that case .such proof as there is before us of a controlling fact, viz., that at the time of the relator’s discharge there was work to be done in other sections under control of the department, and other laborers were retained to perform it.

The final order directing the issuance of a peremptory mandamus should be affirmed, with costs.

Bookstaver and Bischoff,- JJ., concur.