Wagner v. Collis — 74 N.Y. St. Rep. 731

Majority

p. 731

Henry Wagner, App'lt, v. Charles H. T. Collis, as Commissioner, etc., Resp't.

(Supreme Court, Appellate Division, First Dept.,

Filed June 29, 1896.)

Headnote

Mandamus—Exempt firemen.

Mandamus will not issue to restore an exempt fireman, who is a detailed laborer upon public works, to such position from which he was removed without cause shown or a hearing under chapter 577 of 1893.

Appeal from an order denying a motion for a peremptory writ of mandamus.

Louis J. Grant, for app’lt; Terence Farley, for resp’t.

It is not claimed that exempt firemen are entitled to preference in employment upon public works, as are honorably discharged soldiers and sailors. The claim is that, being in such employment, they gan only be removed for cause shown, after a hearing had under chapter 577 of the Laws of 1892. But this act relates only to persons holding positions by appointment, receiving a salary from the city. It has been held that a day-laborer does not come within this provision. Meyers v. City of New York, 69 Hun, 291 ; 23 N. Y. Supp. 484 . In the case at bar the petitioner was not even a regular laborer. He was simply a detailed laborer. He was removed because his service as such detailed laborer was not required, and no one was appointed in his place.

The mandamus was properly refused, and the order appealed from should be affirmed, with costs.

All concur.