People ex rel. Corrigan v. Mayor, Etc., of City of Brooklyn

• Decision Date: 14 April 1896
• Citation: 43 N.E. 554,149 N.Y. 215
• Parties: PEOPLE ex rel. CORRIGAN v. MAYOR, ETC., OF CITY OF BROOKLYN.
• Court: New York Court of Appeals Court of Appeals

149 N.Y. 215

43 N.E. 554

PEOPLE ex rel. CORRIGAN

v.MAYOR, ETC., OF CITY OF BROOKLYN.

Court of Appeals of New York.

April 14, 1896.

Appeal from supreme court, general term, Second department.

Application by Patrick H. Corrigan for a writ of mandamus to compel the mayor and common council of the city of Brooklyn to reinstate relator as keeper of the Truant Home. An order granting a peremptory writ was affirmed by the general term (36 N. Y. Supp. 172), and defendants appeal. Reversed.

On June 11, 1895, an order to show cause why a peremptory mandamus should not issue against the appellants was granted and made returnable on the 15th day of that month. The motion was based on an affidavit made by the relator. It was argued June 21st, and on July 2d an order was entered, which, so far as material, is as follows: ‘It is ordered that the said motion be, and the same is hereby, granted, with ten dollars costs, to be paid by the said mayor and common council of the city of Brooklyn, to said Patrick H. Corrigan. And it is further ordered that a peremptory writ of mandamus, containing appropriate recitals, issue out of and under the seal of this court, commanding the said mayor and common council of the city of Brooklyn forthwith to restore and reinstate the said Patrick H. Corrigan to and in the position held and occupied by said Corrigan previous to the 9th day of May, 1895, namely, the position of keeper of the Truant Home, and to permit, cause, and allow the said Patrick H. Corrigan to perform the work, duty, and service connected with such position, and to assign the said Corrigan to such duty, and also to permit, cause, and allow the said Corrigan to receive and collect the salary, emolument, and compensation now attached to said position, and provided as compensation for the services rendered by the incumbent thereof to the city of Brooklyn.’ A motion for a reargument was subsequently made, and was based upon affidavits showing that one of the affidavits used by the appellants contained an error, which, as appeared from the opinion of the judge at special term, was considered important as bearing upon the question before him. Upon such reargument the court held that the error was immaterial, and denied the motion, but resettled the order, which was reentered August 13, 1895, and which, so far as important, was as follows: ‘It is ordered that the said motion for a reargument of the original motion made herein by the relator be, and the same hereby is, denied, and the stay of all proceedings herein which was ordered by the said order to show cause, dated July 8, 1895, be, and the same hereby is, vacated, set aside, and annulled. And it is further ordered that the order heretofore, and on the 21st day of June, 1895, granted herein, be modified and amended by striking out the whole of the last paragraph thereof, and inserting in place the following: ‘And it is further ordered that a peremptory writ of mandamus, containing appropriate recitals, issue out of and under the seal of this court, commanding the said mayor and common council of the city of Brooklyn forthwith to restore and reinstate the said Patrick H. Corrigan to and in the position held and occupied by said Corrigan previous to the 9th day of May, 1895, namely, the position of keeper of the Truant Home, and to permit, cause, and allow the said Patrick H. Corrigan to perform the work, duty, and services which, under the resolution of the common council of the city of Brooklyn adopted April 29, 1895, and approved by the mayor May 9, 1895, are devolved upon one John Eiseman, as janitor, and to assign the said Corrigan to such duty, and also to permit, cause, and allow the said Corrigan to receive and collect the salary, emolument, and compensation fixed by the said resolution for the performance of the said work, and provided as compensation for the rendering of such services to the city of Brooklyn.’' It was further ordered that the peremptory writ of mandamus which had been granted be modified by striking out all the commands thereof, and inserting in place thereof a command which was substantially identical with the provisions of the order as amended.

In the affidavit of the relator, upon which the order to show cause was granted and the original and amended writ of mandamus were issued, it was stated that the relator was appointed as keeper of the Truant Home of the city of Brooklyn on March 29, 1886, and that the position was afterwards known by the parties as superintendent of the Truant Home. The relator retained the place until May, 1895, when he was removed by the common council. The resolution removing him was adopted April 29, 1895, and, so far as material, was as follows: ‘Resolved, that the positions of superintendent and farmer at the Truant Home be, and the same hereby are, abolished from and after the first day of May, eighteen hundred and ninety-five, for economical reasons, and that the incumbents of the said several positions be, from and after said date, dismissed, for the same reasons. Resolved, that the duties heretofore performed by the superintendent at the Truant Home be, from and after the first day of May, eighteen hundred and ninety-five, devolved upon Eugene Martyn, a teacher of said home. Resolved, that the services of James Towey and Daniel Ferrity, laborers at said home, be dispensed with from and after the first day of May, eighteen hundred and ninety-five. Resolved, that John Eiseman be, and he hereby is, appointed janitor of the Truant Home, and that he receive for his service as such janitor the sum of four dollars per day, and that he have authority to appoint such laborers as may be necessary, subject, however, to the approval of this common council or its successors in authority.’ The relator was a solider in the Union army from August 23, 1862, to June 30, 1865, and was honorably discharged. He was also a volunteer fireman of the city of Brooklyn, and was such at the time of the disbandment of the volunteer fire department of that city. He had been examined by the civil service commissioners of the city Brooklyn, and received a proper certificate. It is stated in his affidavit: ‘I continued to occupy the said position of the keeper of the said Truant Home up to and including the 9th of May, 1895. On that day I was removed, as hereinafter set forth; and one John Eiseman was appointed by the common council of the city in my place, and is now performing some of the same duties as I performed, and he did not pass a competitive or any other examination prior to his appointment.’ The duties performed by the relator as such superintendent were stated in his affidavit as follows: ‘It was my duty to make requisition for supplies for said home, and these were furnished through the department of city works under contracts made by that department. I received all supplies, and certified to that department the correctness of all bills for the same. I also certified to the monthly pay roll of the institution, which contained the names of the employés of the home and the sums due each for their work. There was a teacher in said home named Eugene Martyn, and an assistant teacher. These two teachers were appointed by the common council of the city of Brooklyn. The other employés of said home are enumerated in a schedule hereto annexed, and marked ‘A’; and these latter were employed by me, under the direction of the committee of the common council having the matter of the home in charge. I directed and superintended the labors of all employés, except the teacher and assistant teacher, and even these latter reported to me at their coming and going. I was in general charge and custody of the home and its inmates, and, as a matter of habit and practice, I came to be called the ‘superintendent,’ and was named as such in the pay roll of the home and in all official papers relating to it; but my appointment read as ‘keeper,’ and this was never officially changed. My duties were of the same general nature from the day of my first incumbency, and never changed until my discharge.' It was also stated in the relator's affidavit that, since his departure from the institution, John Eiseman had entered the home, and performed that part of his duties which consisted in the general charge of...