People ex rel. Van Tine v. Purdy

• Decision Date: 23 October 1917
• Citation: 221 N.Y. 396,117 N.E. 609
• Parties: PEOPLE ex rel. VAN TINE v. PURDY et al., Tax Com'rs.
• Court: New York Court of Appeals Court of Appeals

221 N.Y. 396

117 N.E. 609

PEOPLE ex rel. VAN TINE

v.PURDY et al., Tax Com'rs.

Court of Appeals of New York.

Oct. 23, 1917.

Appeal from Supreme Court, Appellate Division, First Department.

Mandamus by the People, on the relation of Frederick Van Tine, against Lawson Purdy and others, as Tax Commissioners of the City of New York. From an order of the Appellate Division (163 N. Y. Supp. 1128), affirming an order denying the application, relator appeals. Reversed, and application granted.

Charles E. Hughes, Jr., of New York City, for appellant.

Lamar Hardy, of New York City, Corp. Counsel (Terence Farley, of New York City, of counsel), for respondents.

McLAUGHLIN, J.

This appeal is from an order of the Appellate Division, First Department, which unanimously affirmed an order of the Special Term, denying the relator's application for a peremptory writ of mandamus compelling defendants to reinstate him as deputy tax commissioner of the city of New York. The facts set out in the petition upon which the application was based were undisputed. The petition set forth, in substance, that in September, 1900, the relator having taken and passed a competitive examination according to law and the civil service rules, was regularly appointed from the civil service list to the position of deputy tax commissioner of the city of New York and performed his duties as such until January 1, 1916, when the defendants dismissed him from his position without giving him an opportunity of making an explanation as required by section 1543 of the Greater New York Charter (Laws 1901, c. 466). Other matters are set forth which it is unnecessary to consider.

The relator contends, and it is upon this ground alone that he bases his appeal, that the writ should have been granted, since his dismissal was in direct violation of the section of the charter referred to. This section, after providing that the heads of all departments shall have the power to appoint and remove all chiefs of bureaus, clerks, officers, employés, and subordinates in their respective departments, ‘except as herein otherwise specially provided,’ contains the following provision:

‘But no regular clerk or head of a bureau, or 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.’

[1][2] The object sought to be accomplished by the provision quoted is obvious. It is to protect persons appointed to a position in the classified municipal civil service, subject to competitive examination, from summary removal. Before such removal can be made the person removed must be given an opportunity of making an explanation. This is a positive requirement and cannot in any case be disregarded. A trial upon specific charges is not necessary, but an opportunity to explain the cause assigned as the basis for the removal must, in every case, be given. The cause assigned must not be a mere whim or caprice of the one clothed with the power of removal, a mere subterfuge to get rid of the person holding the position; on the contrary, it must be of substance, relating to the character, neglect of duty or fitness of the person removed to properly discharge the duties of his position. Matter of Griffin v. Thompson, 202 N. Y. 104, 95 N. E. 7;People ex rel. Mitchel v. La Grange, 2 App. Div. 444,37 N. Y. Supp. 991; affd., on opinion below, 151 N. Y. 664, 46 N. E. 1150. The relator in the present case was not given an opportunity to make an explanation before being removed, nor was the ground for his removal entered upon the record of the department and a copy filed with the municipal civil service. His removal, therefore, was unlawful if the position which he held came within the provisions of the charter above quoted.

[3] Before determining that question it may be well to dispose of the suggestion of the corporation counsel to the effect that the order of the Appellate Division must be affirmed, since it does not appear therefrom that the relator's application was denied as a matter of law; and, since...