Griffin v. Thompson

• Decision Date: 02 May 1911
• Citation: 202 N.Y. 104,95 N.E. 7
• Parties: GRIFFIN v. THOMPSON et al.
• Court: New York Court of Appeals Court of Appeals

202 N.Y. 104

95 N.E. 7

GRIFFIN

v.THOMPSON et al.

Court of Appeals of New York.

May 2, 1911.

Appeal from Supreme Court, Appellate Division, First Department.

Mandamus proceeding by Gerald S. Griffin against Henry S. Thompson and others. From an order of the Appellate Division (140 App. Div. 904,125 N. Y. Supp. 1123) affirming an order denying the writ, appellant appeals. Reversed and writ granted.

On or about August 3, 1888, as the result of a civil service competitive examination, the petitioner was appointed chainman in the department of docks in said city, at a salary of $12 a week. Thereafter and prior to September, 1908, by various promotions, he had attained the position of assistant engineer in the department of water supply, gas, and electricity, and he continued to hold this position until his removal in April, 1910 . He was at the latter date drawing a salary of $3,000 a year, in addition to an allowance of $2.25 a day for the use of a horse and wagon. In April, 1910, charges of insubordination, neglect of duty, and incompetence were preferred against him by one de Varona, who was chief engineer in the department mentioned. The specific charges as they may be condensed were as follows:

First. That ‘on or about September, 1908, and for a period before or after that date, said assistant engineer * * * ordered the men in the repair gangs, of which he had charge, to do certain work * * * which was in charge of the water registrar, not only without the direction or authority of the chief engineer of the department, but without the knowledge of the latter, who only recently discovered the facts in the case.’ The following letter addressed by appellant to the water registrar was appended to this charge as ‘establishing Mr. Griffin's connection with the work referred to’: ‘I submit herewith plan and estimate of the main parts necessary to erect the large meter testing machine at East 24th street. As it is our intention to assemble the various parts ourselves, we now require the parts shown on the accompanying sketch. I have asked several parties to estimate on this work, but up to the present time I have received but one estimate, that from John Turl's Sons.’

Second. The chief engineer of the department addressed to appellant the following letter: ‘You will arrange to turn over at once all the work, records, and force under your charge to Mr . George A. Taber, assistant engineer, who will have immediate charge of all maintenance work in the boroughs of Manhattan and the Bronx.’ To this the appellant in part replied: ‘Inasmuch as I am an honorably discharged veteran fireman and have not been lawfully removed from my position, I respectfully protest against your putting Mr. Taber in charge of any of the work which has been placed under my supervision and against anyattempt to remove me from my present position; and I demand that I be continued and retained in my present position of assistant engineer,’ etc. This was held to be insubordinate and insulting conduct.

Third. Among the men employed in the gangs of which the appellant had charge were some ‘tappers' with their horses and wagons and whose salaries amounted to a considerable sum, and it was charged that ‘Mr. Griffin was so unacquainted with the details of this work and the duties of these men that he denied that he signed the payrolls for these men and the wagons, or was responsible for them, and had to be confronted with signed pay rolls in order to admit the fact.’

The commissioner of the department directed the deputy commissioner to conduct a hearing of the appellant on the foregoing charges, and the latter subsequently made to his superior a report which in effect sustained the charges, and, amongst other things, contained the following statement with relation to the first charge hereinbefore set forth: ‘Acting under verbal orders, as Mr. Griffin claims, from the then deputy commissioner, Mr. Loughman, which Mr. Loughman confirms in a letter written this week, and through some arrangement with Mr. Padden, Mr. Griffin made plans and ordered a testing plant * * * without informing Mr. de Varona, * * * although at a later time in 1909 Mr. de Varona did know that such a testing plant was being constructed.’ Thereafter the commissioner refusing to accept as satisfactory the explanations made by the appellant on the hearing, and of which the most important was that whatever work he had done covered by the first charge had been so done by the direction of the deputy commissioner of the department, removed appellant on a statement of reasons which conform to the charges except in the case of the first one, where it is simply stated that appellant ‘on or about September, 1908, and thereafter, directed men in the repair gangs of which he had charge to do certain work * * * without the authority or knowledge of the chief engineer.’

Roger Foster, for appellant.

Archibald R. Watson, Corp. Counsel (Clarence L. Barber, of counsel), for respondents.

HISCOCK, J. (after stating the facts as above).

The appellant was removed on charges from his position as assistant engineer in the department of water supply, gas, and electricity in the city of New York. He held this position as the result of original appointment under a competitive civil service examination and various subsequent promotions, and thereby was protected against arbitrary removal. He claims that his rights in this respect were violated, and that, having been removed without sufficient cause, he should be reinstated. He also originally claimed that his tenure of position was fortified by service as a member of a volunteer fire department in the borough of Richmond, and that certain rights thereby acquired were violated in his removal. This last claim, however, is without merit, for his alleged membership was one of those sham memberships which have been repeatedly condemned by the courts when urged as a basis for relief in such a proceeding as this. Instead of entitling him to extra consideration, it is the one feature that casts discredit upon him and the defense interposed by his counsel. People ex rel. Storey v. Butler, 124 App. Div. 148,108 N. Y. Supp. 848;People ex rel. Vineing v. Hayes, 135 App. Div. 19, 22,119 N. Y. Supp. 808;People ex rel. Stewart v. Ahearn, 131 App. Div. 932,116 N. Y. Supp. 1144; affirmed, 199 N. Y. 526, 92 N. E. 1098.

I pass, therefore, to the consideration of the question whether his removal was in disregard of those rules which protected him as holding position under the civil service. In determining this it will be best in the first place to state these rules and then by them measure what was done.

Section 1543 of the charter of Greater New York (L. 1901, c. 466) applicable to the present case provides: ‘No * * * person holding a position in the classified municipal civil service subject to competitive examination, shall be removed until he has been allowed an opportunity of making an explanation; and in every case of a removal, the true grounds thereof shall be forthwith entered upon the records of the department * * * and a copy filed with the municipal civil service. In case of removal, a statement showing the reason therefor shall be filed in the department.’

The case of People ex rel. Mitchel v. La Grange, 2 App. Div. 444, 445,37 N. Y. Supp. 991, 992, affirmed on opinion below, 151 N. Y. 664, 46 N. E. 1150, involved a writ of certiorari to review the removal of relator who had been a fire marshal. Section 48 of chapter 410, Laws of 1882 (Consolidation Act), contained practically the same provision for his protection as that now invoked by the appellant. In construing that provision and applying it to the determination of the proceeding then before it, the court said:

‘It is well settled that the commissioners may exercise their power of removal upon facts within their own knowledge, or upon information which they have received, and that testimony is not required to be taken as to the...