Johnson v. Robbins

Appellate Division of the Supreme Court of New York

Johnson v. Robbins

259 A.D. 980, 20 N.Y.S.2d 520, 1940 N.Y. App. Div. LEXIS 7518

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

DecidedMay 22, 1940

StatusPublished

This text of 259 A.D. 980 (Johnson v. Robbins) 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

Johnson v. Robbins, 259 A.D. 980, 20 N.Y.S.2d 520, 1940 N.Y. App. Div. LEXIS 7518 (N.Y. Ct. App. 1940).

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Opinion

Order affirmed, with twenty dollars costs and disbursements. Memorandum: The petitioner, an honorably-discharged veteran of the World War, was removed from his position as police surgeon in the department of police in the city of Niagara Falls. No charges were preferred against him. On the contrary, his services met with the approval of the city. The city claimed the right to remove Tiim on the ground that he was an independent officer and as such he was subject to removal at any time and that, as such independent officer, section 22 of the Civil Service Law afforded him no protection against removal. The parties are agreed that no statute or ordinance exists creating the position of police surgeon or prescribing the duties of such a position. He was not required to take an oath of office, to give a bond, or to keep a place of business for the public use. His duties were occasional and intermittent. He was but a servant in the department of police to render services to that department whenever a prisoner or the victim of accident might need speedy medical attention. The municipal civil service commission classified the position of police surgeon in the exempt class. We think the petitioner was a subordinate employee in the department of police and was subject to the control and direction of his superior officers in that department. Being a subordinate employee and an honorably-discharged soldier of the World War, he could not be legally removed under section 22 of the Civil Service Law, except for incompetency or misconduct shown, after a hearing, upon stated charges. (Matter of Mylod v. Graves, 274 N. Y. 381; [981]*981People ex rel. Rooney v. Warner, 104 N. Y. Supp. 279; People v. Irwin, 166 Misc. 492; Matter of Hathaway, 71 N. Y. 238; N. Y. Fire Department v. Atlas Steamship Company, 106 id. 566.) All concur. (The order adjudges petitioner was removed from the position of police surgeon illegally and directs his reinstatement with salary from the date of his discharge.) Present — Crosby, P. J., Cunningham, Taylor, Dowling and McCurn, JJ.’

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Order affirmed, with twenty dollars costs and disbursements. Memorandum: The petitioner, an honorably-discharged veteran of the World War, was removed from his position as police surgeon in the department of police in the city of Niagara Falls. No charges were preferred against him. On the contrary, his services met with the approval of the city. The city claimed the right to remove Tiim on the ground that he was an independent officer and as such he was subject to removal at any time and that, as such independent officer, section 22 of the Civil Service Law afforded him no protection against removal. The parties are agreed that no statute or ordinance exists creating the position of police surgeon or prescribing the duties of such a position. He was not required to take an oath of office, to give a bond, or to keep a place of business for the public use. His duties were occasional and intermittent. He was but a servant in the department of police to render services to that department whenever a prisoner or the victim of accident might need speedy medical attention. The municipal civil service commission classified the position of police surgeon in the exempt class. We think the petitioner was a subordinate employee in the department of police and was subject to the control and direction of his superior officers in that department. Being a subordinate employee and an honorably-discharged soldier of the World War, he could not be legally removed under section 22 of the Civil Service Law, except for incompetency or misconduct shown, after a hearing, upon stated charges. (Matter of Mylod v. Graves, 274 N. Y. 381; [981]*981People ex rel. Rooney v. Warner, 104 N. Y. Supp. 279; People v. Irwin, 166 Misc. 492; Matter of Hathaway, 71 N. Y. 238; N. Y. Fire Department v. Atlas Steamship Company, 106 id. 566.) All concur. (The order adjudges petitioner was removed from the position of police surgeon illegally and directs his reinstatement with salary from the date of his discharge.) Present — Crosby, P. J., Cunningham, Taylor, Dowling and McCurn, JJ.’

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Bluebook (online)

259 A.D. 980, 20 N.Y.S.2d 520, 1940 N.Y. App. Div. LEXIS 7518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-robbins-nyappdiv-1940.

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