Phillips v. . Mayor, Etc., City of New York

Earl, J.

The plaintiff was not an officer specially provided for in- the city charter; that is, the fire commissioners were not required to appoint or keep a clerk specially charged with the duties which the plaintiff performed. Unless prohibited by the provision in the charter which we will quote, the fire commissioners could at any time discharge the plaintiff and abolish or dispense with the office or position which he filled. The provision referred to is found in section 28 of chapter 335 of the Laws of 1873, and is as follows : “ No regular clerk or head of a bureau shall be removed until he has been informed of the cause of the proposed removal, and has been allowed an opportunity of 'making an explanation'; and in every case of a re moval, the true grounds thereof shall be forthwith entered upon the records of the department or board. In case of removal, a statement showing the reason therefor shall be filed in the department.”

The object of this provision was to. prevent removal except for cause, and then only after a hearing or an opportunity for a hearing. The purpose of a hearing was to enable the clerk or officer proceeded against to satisfy the body or officer having the power of removal that he should be retained. The provision has no application to a case like this. This is not, properly speaking, a case of removal within the meaning of the statute. Here the office or clerkship was abrogated, and there was no more need of plaintiff’s services. He could not claim that the office or clerkship should be retained for his benefit, and the' fire commissioners were not obliged to consult him before abrogating it. And further, the statute does not apply to a case like this where the officer is removed, not to make way for another, but because his services are no longer needed, or because there are no funds provided for his payment. The plain purpose of the statute does not reach such a case.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.