O'Grady v. Low , 77 N.Y.S. 661 ( 1902 )

Ingraham, J.:

The relator presented to the Supreme Court a petition stating that after having passed a competitive examination he was appointed by the Board of City Record of the City of New York a bookbinder in the office of the City Record. This resolution appointing the relator was passed on the 13th day of November, 1901, “ said appointment to take effect on and after November 14, 1901,” and it appeared that the relator commenced work under this appointment on the 18th of November, 1901.

By rule 35 of the municipal civil service rules of the city of New York it is provided that “ Every original appointment to or employment in any position in the competitive class shall be made for a probationary term of three months, and an appointing or nominating officer, in notifying the person certified to him for employment, shall specify the same as for a probationary term only ; and if the conduct, capacity and fitness of the probationer are satisfactory to the appointing officer, his retention in the service after the end of such term shall be equivalent to his permanent appointment, but if his conduct, capacity or fitness be not satisfactory, he may be discharged at the end of such term without regard to the provisions of rule 42, limiting the power of removal.” It further appeared that the conduct and services of the relator were .not satisfactory ; that on the 17th day of February, 1902, a resolution was passed by the board of city record of the city of Hew York ordering the relator’s dismissal at the end of his probationary term of three months; and upon the same day notice thereof was given to the relator. The relator claims that his term of service commenced on the 14th of November, 1901, and his probationary term having expired, his retention in office beyond that time was equivalent to a permanent appointment, and, thenceforth, he could only be removed as provided for by rule 42 of the municipal civil service rules.

We think the court below incorrectly determined that the period of the relator’s employment commenced from the date of his appointment. On the contrary, we think that it began when he commenced work under his appointment and not from the date specified in the resolution appointing him. The relator did not hold a public office. He was an employee of the city, and his appointment was to take effect “ on and after Hovember 14.” His term of employment commenced when he' accepted the appointment by actually entering into the service of the city. The object of this probationary period is “ to enable the head of the department who has made the appointment not only to ascertain the fitness of the probationer, but to learn whether on the whole he is a satisfactory and agreeable person to have serve in the position and one who will become a reasonably efficient officer; ” and also to enable the appointee to familiarize himself with the duties of his employment so that after becoming acquainted with them he will be able to perform them (People ex rel. Kastor v. Kearny, 49 App. Div. 125; affd., 164 N; Y. 64) ; and it was held in that case that both the appointing officér and the appointee were entitled to the whole of the probationary period; the one to determine whether the appointee would make a competent and efficient employee, and the .other to demonstrate that fact to the appointing officer. To accomplish this result it is quite evident that the period must be actually spent in the-service of the city, and must, therefore, run, not from, the time when the appointing power indicates to the appointee that he is to have the position, but from the time the employee' actually commenced his work under his appointment. The rule provides that-every original appointment to or employment in any position in the competitive class shall be made after a probationary term of three! months. The term of an employee commences from the time of his employment, and his employment commences: when he actually commences Work under the appointment. His discharge on February seventeenth, assuming that the probationary term commenced on the eighteenth of November, was proper, for-that was upon the last day of the term and the proper time for the appointing power ' to act.

It follows that the order appealed from should be reversed and the application denied,' with fifty dollars costs and disbursements.

Vak Brunt, P. J., Patterson, Hatch and Laughlih, JJ., concurred.

Order reversed and application denied, with fifty dollars costs and disbursements.