People ex rel. Middleton v. McCartney

Ingraham, J.:

In the case of The People ex rel. Lee v. Waring (1 App. Div. 594) we held that, under section 705 of the Consolidation Act (Chap. 410, Laws of 1882, and chap. 269, Laws of 1892), reorganizing the department of street cleaning of the city of New York, the head' of that department had the power of removal of the members of the uniformed force of the department, and that chapter 119 of the Laws of 1888, as amended by chapter 67 of the Laws of .1890 and chapter 577 of the Laws of 1892, did not apply to members of the uniformed force of the department; that as the act of 1892, reorganizing the department of street cleaning in the city ' of New York, was a special act relating to a particular subject, the-general act iii relation to veterans did not apply. That decision was affirmed by the ‘Court of. Appeals on the opinion of this court. (149 N. Y. 621.) Since the- decision in that case, section 537 of the charter of the city of New York (Laws of 1897, chap. 378), which took" effect on January 1, 1898, continued the special provision in the Street Cleaning Act (Chap. 269, Laws of 189.2), and the act as thus continued is not to be construed as a new enactment, but as a continuance- of the old Street Cleaning Act, so that that act is to be considered as continued in force, and the power. given to the commissioner-is the same as was given under the act of. 1892. (Charter, § 1608.) Since that decision the act of 1884 (Chap. 312), in respect to veterans, soldiers and sailors, has been further amended by chapter 821 of the Laws of 1896. But this act being an amendment of -an act (Laws of 1894, chap. 716) which did not apply, to the street - cleaning department of the city of New York, and not ■ expressly referring to the special statute in relation - to such • department, it cannot be construed as modifying or repealing the provisions of the Street Cleaning Act continued in force by section 537 of the charter. The re-enactment of this Street Cleaning Act of 1892 in the charter, and the amendment of the law of 1884 in respect to veterans, do not change the situation as it existed in 1895, when the question was raised, which was determined in the Lee Case (supra), and upon the authority of that case we think the respondent had the right to remove the relator on evidence satisfactory to him that the relator had been guilty of neglect of duty. The return shows that the relator was reported to the commissioner by the general superintendent of street cleaning as guilty of neglect of duty in regard to cleaning certain streets within his district, and upon that report and the evidence before him the commissioner of street cleaning was satisfied that the relator had been guilty of a neglect of duty and disobedience of orders.

We think the commissioner had the power to remove the relator under the circumstances, and the writ must be dismissed, with costs.

Van Brunt, P. J., Barrett, Patterson and McLaughlin, JJ., concurred.

Writ dismissed, with costs.