People ex rel. Collins v. Ahearn

McLaughlin, J.:

The relator formerly held the position of superintendent of the bureau of highways in the borough of Manhattan, city of New. York, from which he was, on the 1st of January, 1904, removed and the respondent Scannell appointed in his place, and this proceeding is for the purpose of his reinstatement. Scannell has. been permitted to intervene and has interposed an answer to the alternative writ' of mandamus, in which he alleges that the relator was •guilty of certain acts of misconduct committed prior to his removal. The relator moved to strike out these allegations of the answer or return as irrelevant and scandalous. The motion was denied and he has appealed.

The Court of Appeals in this ease held on a demurrer to thfe writ that the relator, having been appointed to the position by the borough president, could not be removed under section 1543 of the city charter (Laws of 1901, chap. 466) except upon charges and after being afforded an opportunity to make an explanation. (People ex rel. Collins v. Ahearn, 193 N. Y. 441.) This is the law of the case and, therefore, whether he had, prior to his removal, committed the acts alleged and sought to be stricken out of the answer is wholly irrelevant, because if it be assumed that he had done so it did not justify the removal until charges had been preferred and he had been afforded an opportunity to make an' explanation. To hold otherwise would permit the statute tó be violated ; in other words, a person could be removed without charges or being given an opportunity to make an explanation and then when he sought to be reinstated such proceeding could be defeated by showing that charges might have been preferred prior to his removal. The statute cannot be evaded in this way.

The matters sought to be stricken out in paragraph 8 and the whole of paragraphs 13, 14, 15 and 16 of the answer of the respondent Scannell are irrelevant to the issues to be' ti-ied.

It follows, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingeaham and Laughlin, JJ., concurred; Clabke and Scorn JJ., dissented.