Howard v. Higgins

Appellate Division of the Supreme Court of New York

Howard v. Higgins

245 A.D. 154, 281 N.Y.S. 124, 1935 N.Y. App. Div. LEXIS 10249

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 26, 1935

StatusPublished

This text of 245 A.D. 154 (Howard v. Higgins) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Howard v. Higgins, 245 A.D. 154, 281 N.Y.S. 124, 1935 N.Y. App. Div. LEXIS 10249 (N.Y. Ct. App. 1935).

Pincite

Opinion

Edgcomb, J.

On March 2, 1931, the petitioner was duly appointed laborer in the department of police in the city of Buffalo, N. Y., and was assigned to the work of washing cars at the police garage. He held that position until April 20, 1934, when he was summarily discharged. He alleges that his removal was illegal [155]*155for the reason that no written charges were served upon him, and he was never given a chance to defend himself. He also claims that his dismissal was occasioned solely for political reasons in violation of section 25 of the Civil Service Law.

In its essential elements this proceeding is comparable to Matter of Deth v. Castimore (245 App. Div. 156), decided herewith. Each petitioner claims bis right to relief under the same statute, and the same objections and excuses are urged by the respective parties in both proceedings.

While the work done by the petitioner in the instant case is somewhat different from that performed by the petitioner in the Deth case, I think it must be said that Howard was a member of the police department, within the meaning of section 445 of the Buffalo charter (Local Law, No. 4, 1927; Local Law 1932, p. 107), for the same reasons that we held Deth to be a member of the fire department. What we said in our opinion in the Deth case is largely applicable here. There is not enough difference between the two cases to take the present proceeding out of the rule laid down in the Deth case, and the same result should follow in each instance.

All concur. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.

Order so far as appealed from by the defendants

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Edgcomb, J.

On March 2, 1931, the petitioner was duly appointed laborer in the department of police in the city of Buffalo, N. Y., and was assigned to the work of washing cars at the police garage. He held that position until April 20, 1934, when he was summarily discharged. He alleges that his removal was illegal [155]*155for the reason that no written charges were served upon him, and he was never given a chance to defend himself. He also claims that his dismissal was occasioned solely for political reasons in violation of section 25 of the Civil Service Law.

In its essential elements this proceeding is comparable to Matter of Deth v. Castimore (245 App. Div. 156), decided herewith. Each petitioner claims bis right to relief under the same statute, and the same objections and excuses are urged by the respective parties in both proceedings.

While the work done by the petitioner in the instant case is somewhat different from that performed by the petitioner in the Deth case, I think it must be said that Howard was a member of the police department, within the meaning of section 445 of the Buffalo charter (Local Law, No. 4, 1927; Local Law 1932, p. 107), for the same reasons that we held Deth to be a member of the fire department. What we said in our opinion in the Deth case is largely applicable here. There is not enough difference between the two cases to take the present proceeding out of the rule laid down in the Deth case, and the same result should follow in each instance.

All concur. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.

Order so far as appealed from by the defendants

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Bluebook (online)

245 A.D. 154, 281 N.Y.S. 124, 1935 N.Y. App. Div. LEXIS 10249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-higgins-nyappdiv-1935.

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