People ex rel. Cunliffe v. Cram , 54 N.Y.S. 355 ( 1898 )

BARRETT, J.

The writ was dismissed at the trial upon the relator’s opening, the learned trial judge holding that the allegations of the writ were insufficient to constitute any cause of grievance against the respondents. The relator alleges that he is an honorably discharged Union soldier; that on or about the 30th day of October, 1874, he entered the employ of the dock department as an expert painter; that on October 18,1875, he was appointed also as an inspector of painting and general repairs; and that he continued in the employ of the department up to the ¿1st day of October, 1894, when he was discharged by a resolution in the following words:

“Resolved, that William H. Cunliffe, William O. Rogers, and George N. Baker, painters, be, and hereby are, honorably discharged from the service of this department, to take effect November 1, 1894, pursuant to the provisions of the Saxton bill.”

The relator also alleges that, during the entire period of his employment, he was continuously occupied as such employé, and at all times performed his work to the entire satisfaction of the department. The details of his continuous service are fully set forth. He also alleges that, at the time of his discharge, he was actually employed in supervising a particular piece of work, which would have required for its completion about two weeks’ more time; that there was, down to the date of the writ, work to be performed by the department of the character of that upon which he had previously been engaged; that, since his discharge, such work had actually been performed by the department; and that other men who were not honorably discharged Union soldiers had been employed to perform such work. He finally alleges that the respondents, when they removed him, knew that he was an honorably discharged Union soldier, and that he personally appeared before the board, and demanded reinstatement or re-employment, which was refused.

The facts here averred brought the relator’s case within the provisions of chapter 716 of the Laws of 1894. This act, which was in force at the time when the relator was discharged, in terms embraces all the cities, towns, and villages of the state. It provides that in all cases the person having the power of employment or appointment, unless the statute provides for a definite term, shall have the power of removal only for incompetency and conduct inconsistent with the position held by the employé or appointee. The claim is made that because, at the time of the passage of this act, chapter 577 of the Laws of 1892 was in full force and effect, and as this latter chapter in some degree protected veterans holding positions by appointment in cities, it was not intended by the act of 1894 to make further provision for their protection when employed in strictly corporate work, but only to bring them, when engaged in state work done in cities, within the purview of the general statute. We see no reason for thus limiting the operation of the general act of 1894. It is broad enough to cover all public works of the cities of the state, whether municipal or governmental. It is apparent from the reading of the two acts that the intention was to extend the protection afforded to veteran appointees by the act of 1892, relating to cities, to all employés, whether in the receipt of a definite salary, or compensated for their labor by daily wages. We quite agree with the respondents that the two acts are in pari materia, and should be construed together. But what then? The act of 1892 merely provides that no person holding a position by appointment, or who may hereafter be appointed, in any city or county of the state, receiving a salary from such city, who is an honorably discharged soldier, shall be removed from such position except for cause shown after a hearing had. This did not give the veteran any right to preferential appointment or employment. In securing an appointment or employment, he Was still upon equal terms with all other citizens. It was only after he had secured appointment, with a fixed salary, that the act shielded him. The act of 1894, however, grants to the veteran the full measure of the peopie’s favor. Its protéction is not limited to a mere shield against removal. It distinctly and broadly provides for preferential appointment and employment. It also defines the cause for which alone the veteran, after securing his preferential appointment or employment, can be removed. The act of 1892 limited the power of removal of salaried appointees, to cause shown after a hearing had. The act of 1894 went further, and limited such “cause” to incompetency and conduct inconsistent with the position held. Under the act of 1888 (chapter 119), which was amended by the act of 1892, it was held that an ordinary employé upon daily wages was not a person holding a position by appointment receiving a salary. Meyers v. City of New York, 69 Hun, 291, 23 N. Y. Supp. 484. It was undoubtedly in part to cover such cases, and to extend to all veteran employés the protection there questioned, that the act of 1894 was passed. In our judgment, the latter act covers the whole field of state and municipal service, guarantying preferential appointment and employment, together with security of tenure during competency and good behavior. It .thus supplements and completes the protection afforded by the anterior city acts, and it embraces every form of employment.

It follows that the relator’s allegation of employment was sufficient; that no allegation of appointment with a salary was requisite; and that, as the relator was removed for reasons other than those authorized by the act of 1894, the removal was unlawful. The respondents could only remove him for incompetency and conduct inconsistent with the position held; and the burden of alleging and proving that incompetency and inconsistent conduct was upon them.

The judgment should therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.