People Ex Rel. Fleming v. . Dalton ( 1899 )

I dissent from the conclusion reached by Judge BARTLETT, that the order of the Appellate Division should be reversed, upon two grounds. In the first place, chapter 186 of the Laws of 1898 did not apply to the city of New York; my reasons for that statement being given in the Leet Case, (157 N.Y. 90), and again, somewhat more fully expressed, in the Terry case, decided at this term.

In the second place, the act of 1898, referred to, was prospective in its operation and did not affect the civil service rules and regulations which were adopted by the municipal civil service commissioners of the city of New York, on March 5th, 1898, and which were existing at the time; nor would affect them, until the expiration of three months, when they would cease, if not previously approved by the state board. Therefore, the removal of the relator on April 11th, 1898, because effected under regulations at the time not affected by the amending act of 1898, was valid. This ground is also covered by the discussion in the Leet and Terry Cases (supra).

I think that the order of the Appellate Division should be affirmed, with costs. O'BRIEN, J., concurs.

All concur (PARKER, Ch. J., in result) with BARTLETT, J., for reversal, except GRAY and O'BRIEN, JJ., who file dissenting memorandum.

Order reversed, etc.