Dunne v. City of New York , 101 N.Y.S. 678 ( 1906 )

Scott, J.:

The plaintiff is a veteran volunteer fireman of the village-of Greenbush in this State, and as such entitled to a certain preference in appointment and employment under chapter 184 of the Laws of 1898 (amdg. Laws of 1888, chap. 119, § 1) and under section 21 of the Civil Service Law (Laws'of 1899, chap..370).

In July, 1896, he passed the necessary civil service examination and was placed upon the eligible list for inspector of masonry in the city of New York. On October 3, 1896, he received an appointment from the department of parks as inspector of masonry, and was assigned to work on the speedway, where he remained employed until July 15, 1898, when he was notified that “on account of the completion of work” his services would no longer be required. In his complaint he alleges that he was thereby “ unjustly and unlawfully dismissed and discharged.” On August 1/1898, he was reinstated and assigned to work, and did work and was paid for his services UP til September 9, 1898, when he was again discharged “ on account of the completion of work.” He performed no fjnrther work for. defendant until August % 1899, when he was again reinstated and assigned to work,, for which he was paid.. Oil December 29,1899, he was again discharged “ owing to the completion of the Work * * * upon which you have been assigned.” He performed no -further service for the city until June. 13, 1900, when lib 'was again reinstated and assigned to work, vupon which, so far ás appears, he is now engaged. This action is brought to recover ihe wages or salary attached to the position of inspector of másonry for the several periods during which he was under removal and performed no work for the city. It is alleged, as was the fact,- that hone of his removals or dismissals, were upon charges after a hearing, but -it is not denied that in each case the cause stated for his removal] to wit, that the work upon which he was engaged had been completed, was the true reason and according to the fact. Hor was. it alleged or proven that the park, department was engaged in erecting during any of those periods any masonry work requiring • the ¡ services- of an. inspector, Or that any other such inspectors were employed .in preference to him,, -or at all. I '. '

In effect, his contention is that upon Jiis first j appointment as inspector of masonry in the park department he became an officer of the department, entitled to receive the salary attached to that position, whether there was'any wqrk for him to dp, and which he did do, or not, and that the mere fact that the ¡department was engaged in no work for which liis.services were required furnished no ground for his discharge. The defendant,, on the contrary, insists that plaintiff’s relation to the city is merely' the contractual one of an employee, and that, as has been held ini a multitude of cases, the services of such an employee may be dispensed with at at any time, either for lack of work or for.' lack, of funds, without the necessity of charges and a hearing. (Eokerson v. City of New Norlc, ,80 App. Div. 1,2.) The very statutes unde:” which plaintiff claims a preference plainly contemplate - that a beneficiary .under them would not be retained in Iris. office or position if there he-no work for him to do, as they provide that-“in cities of. the -first class, if the position so held by any such * * *'' volunteer fireman shall become unnecessary, or be abolished for,reasons of economy or otherwise,” the beneficiary of tile acts, shall be retained in the public service and transferred to some other department, a form of relief for which plaintiff does not apply. The very-term “inspector of masonry” implies that fhe services of the person holding the position will be required only' when there is masonry work in course of construction, and there is no presumption, and in this case no proof, that the park department was constantly engaged in such work. The defendant concedes in the fullest way that the plaintiff, under the statutes cited, is entitled to a preference in appointment and retention in the public service; that he must be the first to be appointed or promoted, arid, in case of a reduction of the force, the last to go. But it insists, and with reason, that plaintiff holding a position in which his usefulness and availability is, in the nature of things, dependent upon the existence of a cause for his employment, may lawfully be discharged when the reason for his employment ceases, reserving the right, of which plaintiff does riot complain that he has been deprived, of a preference -for reappointment when occasion for the services of employees of his class shall again -arise. In the case of an official holding a position somewhat similar toi that of plaintiff, although more permanent and continuous with respect to the nature of its duties, i. e., superintendent of sidewalks and sidewalk repairs, it has recently been held by the Appellate Division in the fourth department that, in the absence of an unequivocal, clear ,and certain "designation of the plaintiff as a municipal officer, he was merely an employee holding a contractual relation to the city. (Grieb v. City of Syracuse, 94 App. Div. 133.) The same view was taken of the position of an inspector of regulating and grading streets in New York city. (Meyers v. Mayor, etc., 69 Hun, 291.) The plaintiff in Emmitt v. Mayor, etc. (128 N. Y. 117), much relied upon by plaintiff, held an •office created by statute, and was employed upon a work involving, from its very nature, the constant and continuous employment of inspector’s of masonry. Eurthermore, no question was raised or 'passed upon as to the authority of the aqueduct commissioners to remove him, the case hinging upon an attempted suspension. O'Hara v. City of New York (46 App. Div. 518) went further than any other case has done in investing with the dignity of an office a person holding a position commonly classed among those held by employees, but even in that case the nature of the employ-meat implied constant and continuous service. In People ex rel. Kenny v. Folks (89 App. Div. 171) it was , assumed' that relator held an office and that point was neither discussed ¡ñor decided.

Our conclusion is that plaintiff held no office tjo which.a--salary-was- attached as • an incident, but was an employee who could be rightfully dismissed whenever, for lack of work, liis; services became-unnecessary. ' , '

It follows that the judgment should be affirmed-!, with costs:

Patterson,' Ingraham, McLaughlin and Houghton, JJ., concurred. • ;

Judgment affirmed, with costs. Order filed: Í