People ex rel. Warschauer v. Dalton

• Decision Date: 06 June 1899
• Citation: 53 N.E. 1113,159 N.Y. 235
• Parties: PEOPLE ex rel. WARSCHAUER v. DALTON.
• Court: New York Court of Appeals Court of Appeals

159 N.Y. 235

53 N.E. 1113

PEOPLE ex rel. WARSCHAUER

v.DALTON.

Court of Appeals of New York.

June 6, 1899.

Appeal from supreme court, appellate division, First department.

Petition by the peopoe on the relation of Severin Warschauer, against William Dalton, as commissioner of water supply in the city of New York, for mandamus to compel respondent to reinstate relator in the position of inspector of water supply to shipping in the department of public works. From an order of the special term dismissing the petition, relator appealed to the appellate division, which affirmed the order (54 N. Y. Supp. 216), and he again appeals. Affirmed.

W. R. Spooner, for appellant.

John Whalen and Theodore Connoly, for respondent.

PARKER, C. J.

On this appeal the relator insists that his attempted removal by the defendant on the 11th day of June, 1898, was illegal upon two grounds: First, because it appears by the relator's petition that he was holding the position of a regular clerk, and therefore could not be removed without an opportunity to make the explanation provided for by section 1543 of the Greater New York charter; second, because he was removed from a competitive position without having the reasons therefor set forth in writing, and duly filed, and an opportunity afforded him to make an explanation, under chapter 186 of the Laws of 1898.

As to the first ground the appellate division unanimously held that the facts recited in the petition did not show that the position held by the relator was that of a regular clerk, and hence it affirmed the order of the special term dismissing the writ. The opinion of that court so exhaustively considers the question as to leave nothing to be added, and we adopt it as furnishing the reasons for holding that the relator's first position on this review is not well taken.

The second ground of error alleged is apparently presented in this court for the first time in the history of this proceeding. The record contains no indication that it was brought to the attention of the special term or of the appellate division. It is suggested that the reason for it is obvious, in that the order of the special term was made in October, 1898, while the Fleming Case (People ex rel. Fleming v. Dalton, 158 N. Y. 175, 52 N. E. 1113) was not decided by this court until February, 1899. The fact that no such question was raised at the special term or at the appellate division should, under a perfectly well-settled and long-established rule, deprive the relator of the right to have it considered in this court. Drucker v. Railway Co., 106 N. Y. 157, 12 N. E. 568;Baird v. Mayor, etc., 96 N. Y. 567, 603;Stapenhorst v. Wolff, 65 N. Y. 596;Home Ins. Co. v. Western Transp. Co., 51 N. Y. 93. If, however, in violation of the rule that a party on appeal must stand by the theory of his action or proceeding as presented at the trial court or special term, we proceed to inquire into the matter, we must reach the conclusion that the relator did not show in his petition that he was within the protection of chapter 186 of the Laws of 1898, in that his petition fails to state that his position under the civil service law and rules was classified as competitive. In the Leet Case this court held not only that the act of 1898 had no application to an...