People ex rel. O'Connor v. Adams

the cash room in the same department. On the 9th day of June thereafter the regular clerk returned to the performance of his usual duties, and the necessity for the relator’s employment ended, and the following notice was then sent to him by the chief clerk of the - department of city works; “ Sir—I am directed by the commissioner to notify you that your services are no longer required by this department after this date.” Thereafter the relator ceased to act as temporary clerk, but the other three temporary clerks who were appointed at the same time and assigned to other duties in the same department were retained.

The relator was an honorably discharged Union soldier; but the other three temporary clerks had not been soldiers. Hence he claims that he should have been retained in his employment as temporary clerk and that some one of the others should have been •discharged. He applied for a peremptory writ of mandamus to compel the commissioner of the departihent of city works to recognize him as a clerk in the bureau of water rates and allow him to have and hold the position and employment and receive the sal.ary attached thereto. The court at special term denied the writ, but upon appeal to the general term the order of the special term was reversed and a writ of peremptory mandamus ordered to be issued commanding the commissioner of city works to recognize the relator in the department of water rates by virtue of his ap■pointment thereto on the 8th day of May, 1888, and “ as the person lawfully entitled to such clerkship, and restore him to and place him in possession of said office, position and clerkship, and permit him to render service therein, and have and receive the ■salary attached thereto, and otherwise do what may be lawful and necessary in the premises to vest said relator with the said office, position and clerkship de jure and defacto.”

That order of the general term was made on the 29th day of •June, 1889, and if upheld the relator appointed to a temporary clerkship only would be restored to the office after more than a year had elapsed, and presumably long after the occasion for his ■services had ceased.

The relator bases his claim upon the provision contained in the •fict, chap. 464 of the Laws of 1887, § 1 of which provides that, u In every public department and upon all public works of the ■state of Hew York, and of the cities, towns and villages thereof, and also in noncompetitive examinations under the civil service laws, rules and regulations of the same, wherever they apply, honorably discharged Union soldiers and_ sailors shall be preferred for appointment and employment; ” and § 2 provides that, “ All officials or other persons having power of appointment to, •or employment in, the public service, as set forth in the first section of this act, are charged with a faithful compliance with its terms, both in letter and spirit, and a failure therein shall be a misdemeanor.” These provisions do not apply to such a case as this. Here a temporary clerk was needed, and the relator, an honorably discharged Union soldier and, so far as appears, the •only one eligible, was preferred for appointment and assigned temporarily to the discharge of specific duties, and when those

duties had been discharged and his services were no longer needed he was simply notified of the fact. In no proper sense was he discharged. He filled the appointment of temporary cleric for some time, and when his services were no longer needed they were dispensed with. It is impossible to see what just ground of complaint he has. It is true that there were three other persons-appointed as temporary clerks whose duties, as we must assume,, haa not been fully discharged, and they were therefore retained.. But he could lay no claim to any of their positions. He could not ask that they, who bad been lawfully placed in the position» of temporary clerks, should be discharged to make room for him, and there is no statute which gives him such a right. He had no greater right to claim their places than any other eligible honorably discharged soldier had, and he had no standing by writ of mandamus to compel the commissioner of city works to put him in one of the places filled by them.

Nor is the relators case governed by chapter 708 of the Laws-of 1887, which provides that, “ all persons holding positions in the city of Brooklyn, or county of Kings, receiving salary from said city and county treasury, who shall be an honorably discharged soldier or sailor of the late war of the rebellion, shall not be removed from such position, except for good cause shown after a hearing had, but such person or persons shall hold such, position for and during good behavior.”

That provision manifestly does not apply to such a case as this. The relator was not removed from any position. He was appointed for a temporary purpose, and when that purpose' was served he was simply notified that his services were no longer needed; and thus his term of service had ended. He had no right, whatever to any longer term. A temporary clerk could not claim to hold a position to which he was assigned “ for and during good behavior.”

We have, therefore, reached the conclusion that the learned general term fell into error, and its order should be reversed, and that of the special term affirmed, with costs in the supreme court and in this court.

All concur.