People ex rel. Corrigan v. Mayor of Brooklyn

stated this was done for “ economical reasons.’’ If the effect of this was to substitute one man for another in the performance of the same duties at a reduced salary, it would, without doubt, fall within the prohibition of the statute, unless the incumbent refused to accept the reduced pay. Tne object of the statute being, as was said by the court of appeals, to continue in office faithful, trustworthy, and competent persons, it would not be a sufficient cause for their removal that another person could be procured willing to serve at a lower rate of pay. The incumbent should have an opportunity to remain in office at the reduced salary, and thus the “economical ” spirit would -prevail, and the city retain an experienced and faithful servant. But to remove an incumbent, without a hearing, because the appointing officers had determined to reduce the salary of the office, would be to defeat absolutely the plain purpose and intent of the law. The decision of this case therefore rests on the determination of the question whether there has been an honest and substantial abolition of the office, or whether there has been merely a’ change of names, and a devolution of the duties of the office upon a new appointee. So far as there is any conflict in the facts of the case upon this motion, those stated in the opposing affidavits must be taken as true. People v. Cromwell, 102 N. Y. 477 ; Code Civ. Proc. § 2070. By the resolution of the common council, the duties of the relator were, after his discharge, to be performed by Eugene Martyn, a teacher of the said home. The relator swears his duties were as follows: “It was my duty to make requisition for supplies for said home, and these were furnished through the department of city works, under contracts made by that department. I received all supplies, and certified to that department the correctness of all bills for the same. I also certified to the monthly pay roll of the institution, which contained the names of the employes of the home, and the sums due each for their work. There was a teacher in said home, named Eugene Martyn, and an assistant teacher. These two teachers were appointed by the common council of the city of Brooklyn. The other employes of the said home are enumerated in a schedule hereto annexed, and marked ‘A,’ and these latter were employed by me, under the direction of the committee of the common council having the matter of the home in charge. I directed and superintended the labors of all employes, except the teacher and assistant teacher, and even these latter reported to me at their.coming and going. I was in general charge and custody of the home and its inmates.” He further swears": “ Since my departure from said institution,' John Eiseman has entered said home, and has performed that part of my duties which consisted in the genéral charge of the inmates and employes of the said home, which is by far the largest part of said duties, while Eugene Martyn, said teacher, has done that part which consisted of making requisitions for supplies, receipting for the same, and certifying bills and payrolls.” Eugene Martyn swears: “That the statement in the relator’s affidavit .contained on the fourth page thereof, ‘that on the 9th day of May, 1895, John Eiseman was appointed by the common council in the place of said relator,

and is now performing the duties formerly performed by him,’ is untrue; that during the superintendcy of the said Corrigan, that the duties that would naturally devolve upon a janitor of the institution were rarely if ever performed by the said superintendent; that the work may have been done under his direction, but was usually performed by the laborers or the boys; that the only work the superintendent did during his superintendency was the making of requisitions for supplies, certifying to the monthly pay rolls of the institution, and the hiring of domestic servants; that after the discharge of the relator, pursuant to the resolution of the common council, as set forth in affidavit of said relator, the aforesaid duties devolved upon deponent, and have ever since said time been performed by deponent.” Henry Vollmer, a member of the common council, swears: That the statement in the relator’s affidavit, contained on the fourth page thereof, ‘that on the 9th day of May, 1895, John Eiseman was appointed by the common conn- ■ cil in the place of said relator, and is performing the duties formerly performed by him,’ is untrue ; that during the superintendency of the said Corrigan, that the duties that would naturally devolve upon a janitor of the institution were rarely if ever performed by the said superintendent; that the work may have been done under his direction,, but was usually performed by the laborers or boys; that the only work the superintendent did during his' superintendency was the making of requisitions for supplies, certifying to the monthly pay rolls of the institution, and the hiring of domestic servants; that after the discharge of the said relator, pursuant to the resolution of "the common council, ns set forth in tfie affidavit 'of said relator, the aforesaid duties devolved upon deponent, and have ever since said time been, performed by deponent.” It will he observed that the quotations from the affidavits of Martyn and Vollmer are almost identical in language, and that each swears he is performing the duties performed by the relator during his incumbency of the office. Of course, both affidavits cannot "be true, as one expressly contradicts the other; and, if I was permitted to determine the facts of -the case, I should reject both of them. Martyn’s affidavit is, however, consistent with the resolution of the common council, which devolved the duties of the office upon him, and the relator does not deny that a part of the duties "of the office are now performed by Martyn. But there is no- substantial contradiction that the relator was the janitor of the home. It is conceded that the duties now performed by Eiseinan were performed under the direction of the relator. He was originally designated “keeper” of the home. Afterwards he became known as “ superintendent,” and it is not denied that he had general charge of the institution, and that the duties of janitor were within his office. The common council could have devolved some of his duties on subordinate officers, or divided them, and given a portion to the new appointee; but as the relator was willing to perforin any part of the duties originally belonging to the office, at such salary as the common council should fix, he. was protected from removal, except for cause and after a hearing. Such construction only will give due effect to the intent of the

law. The relator is entitled to be reinstated as janitor, and an order may be entered accordingly. x