Meenagh v. Dewey

• Decision Date: 29 July 1941
• Citation: 286 N.Y. 292,36 N.E.2d 211
• Parties: MEENAGH et al. v. DEWEY, Dist. Atty.
• Court: New York Court of Appeals Court of Appeals

286 N.Y. 292

36 N.E.2d 211

MEENAGH et al.

v.DEWEY, Dist. Atty.

Court of Appeals of New York.

July 29, 1941.

Appeal from Supreme Court, Appellate Division, First Department.

Proceedings by John A. Meenagh and others for a mandamus order directing Thomas E. Dewey, as District Attorney of the County of New York, to reinstate petitioners in positions of process servers, from which respondent had removed them, or appoint them to other positions created by respondent. An order of the Trial Term, 173 Misc. 209, 17 N.Y.S.2d 599, requiring reinstatement of petitioners Meenagh and certain others and their appointment to positions created by respondent, was affirmed by the Appellate Division, Application of Meenagh, 261 App.Div. 811, 25 N.Y.S.2d 782, which denied appeal therefrom, 261 App.Div. 897, 27 N.Y.S.2d 183, and respondent appeals by leave of the Court of Appeals.

Orders reversed, and new trial of certain issue ordered.

LOUGHRAN, J., dissenting in part. William C. Chanler, Corp. Counsel, of New York City (Robert H. Schaffer, Paxton Blair, and Denis B. Sullivan, all of New York City, of counsel), for appellant.

John C. McDermott, of New York City, for respondents.

LEHMAN, Chief Judge.

The appellant, Thomas E. Dewey, was elected District Attorney of New York County at the election held in November, 1937. Prior to that time, he had been serving as Special Prosecutor. Mr. Dewey's position as Special Prosecutor was a temporary position and the employees in his office were not in the competitive class of the Civil Service. To cover the expenses of Mr. Dewey's office as Special Prosecutor, and the salaries of his employees, during the year 1937, the sum of about $230,000 was appropriated. During the same year, the appropriation for the employees in the office of the District Attorney of the county was approximately $715,000. Prosecution of cases previously within the jurisdiction of the Special Prosecutor became part of the work of the office of the District Attorney when Mr. Dewey, the Special Prosecutor, became District Attorney. No separate appropriation was made to cover the expenses of the prosecution of such cases for the year 1938. The appropriation for expenses of the District Attorney's office for that year was approximately $772,000, an increase of more than $56,000 over the amount appropriated for the expenses of the same office in 1937, yet the amount so appropriated for 1938 was more than $173,000 below the amount of the combined appropriations for the expenses of the District Attorney's office and for the expenses of the Special Prosecutor in 1937. Though after January 1, 1938, the work of the office of the Special Prosecutor became part of the work of the office of the District Attorney, yet for the performance of the combined work Mr. Dewey could not integrate into the staff of the District Attorney's office the members of the staff whom he had employed as Special Prosecutor, nor, out of the appropriations for 1938, pay the salaries previously paid to the employees of the District Attorney's office and to his own employees. Reorganization of the staff and redistribution of the work was necessary so that the work might be done without exceeding the appropriation.

Sixty employees then in the District Attorney's office had been appointed to positions under the title of process servers. Twelve of these positions had been placed in the exempt class by the Civil Service Commission and the holders of these positions had been appointed without examination. Forty-eight positions were in the competitive class and the holders of these positions had been appointed from eligible lists promulgated after competitive examination. In the reorganization of the staff of the District Attorney's office, the number of positions under the title of process server was reduced from sixty to twenty-five the twelve exempt positions and twenty-three of the positions in the competitive class were abolished. At the same time new positions were created which were placed in either the exempt or the non-competitive class. Because of this reduction of the number of positions under the title of process server, from sixty to twenty-five, it became necessary to remove from the pay roll of the office or to transfer to other positions thirty-five process servers. Fourteen persons who had held positions as process servers, which were abolished, brought proceedings in the Supreme Court asking for an order of mandamus either peremptory or alternative, ‘directing the respondent to forthwith reinstate your petitioners to the place of process servers from which he has wrongfully removed them or to appoint your petitioners to the positions created by the respondent and taking the place of the positions heretofore held by your petitioners, * * * with all the salary, interests and emoluments due each of them from the date of his wrongful removal and discharge.’ All of the petitioners claimed that their positions were not abolished in good faith, and that Mr. Dewey merely transferred to newly created positions, with different titles, the duties which had formerly been attached to the positions which they occupied. Five of the petitioners were honorably discharged soldiers. Eight of the petitioners had held competitive positions, but were not honorably discharged soldiers. The fourteenth petitioner discontinued his proceedings by stipulation.

Section 22 of the Civil Service Law (Consol. Laws, ch. 7) provides, amongst other things, that: ‘No person holding a position by appointment or employment in the state of New York, or in the several cities, counties, towns or villages thereof * * * who is an honorably discharged soldier * * * shall be removed from such position except for incompetency or misconduct shown after a hearing upon due notice upon stated charges * * *. If the position so held by any such honorably discharged soldier * * * shall become unnecessary or be abolished for reasons of economy or otherwise, the said honorably discharged soldier * * * shall not be discharged from the public service but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill.’ The eight petitioners who are not honorably discharged veterans have no such right to be transferred to any other position which they could fill. They are entitled to be reinstated to their former positions only if the abolition of those positions and the creation of new positions was a subterfuge devised for the purpose of evading the provisions of the Constitution of the State and the provisions of the Civil Service Law, which are intended as assurance that appointments and promotions in the civil service of the State shall be made in accordance with merit and fitness, ascertained whenever practicable by competive examination, and to give those appointed to positions in the civil service a right of tenure of office which may not be destroyed to make room for political or personal favorites of the head of the department. The five honorably discharged soldiers are given, by the statutes, rights not accorded to the others. When their positions are abolished for legitimate reasons, each may demand transfer to such vacant or newly created position ‘as he may be fitted to fill’ within the meaning of the statute.

The court in this proceeding followed the procedure used upon application for orders of mandamus before the present Article 78 of the Civil Practice Act, s 1283 et seq., was adopted. After hearing the petition of the eight petitioners who were not veterans, the court held that the positions had been abolished, in good faith, to promote economy and efficiency of administration and that the eight petitioners who are not veterans and are not entitled, as such, to the rights conferred upon honorably discharged soldiers by section 22 of the Civil Service Law, have no right to any relief. The court, therefore, denied their petitions. At the same time the court granted the motion of the five veterans to the extent of directing that a trial should be had upon the following issue: ‘Within the purview of Sec. 22, sub. 1 of the Civil Service Law are the petitioners John A. Meenagh, George W. Friob, William J. Kissane, Nicholas D. Sucarato and Edward T. Coll fitted to fill any of the new positions created in the office of the District Attorney on or after January 1, 1938?’ The petitioners who are not veterans did not appeal from the order denying their application.

After trial of the issue so framed, the court found that:

‘None of the petitioners was removed from his position for incompetency or misconduct.

‘When the respondent abolished the positions of the petitioners, he created new positions under new designations as chief investigator, investigators, chief interviewer, interviewers, confidential clerk, confidential messengers and messengers.

‘Prior to the first day of January, 1938, the petitioners above named had been performing work in the District Attorney's Office far beyond and not related to the title of process servers.

‘Work performed by the new appointees of the respondent under new titles and designation as chief investigator, investigators, chief interviewer, interviewers, confidential clerk, confidential messengers and messengers, was work that the petitioners had formerly performed under their old titles of process servers.

‘None of the petitioners was transferred by the respondent to any positions existing under or created by the respondent.

‘The respondent was a person clothed with the power of appointment to make such transfers effective.

‘None of the petitioners was given an opportunity or hearing by the respondent to ascertain whether or not he may be fitted to fill any position created by the respondent.'

A final order was entered upon these findings which required the District Attorney to reinstate the petitioners and to ‘appoint them to the positions created by the respondent, leaving to the...