Moore v. Harvey

236 A.D. 815

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1932
• Status: Published

Opinion

Certiorari proceeding sustained, determination annulled and the matter remitted to the president of the borough of Queens for a rehearing, without costs, on the ground that the charges are limited to improper and inefficient conduct in the performance of the duties of relator, neglect of duty and ineompeteney in failing to make fitting and proper investigation and inquiry into the letting of certain contracts; and that the evidence does not sustain such charges. The duties of the assistant engineer, acting as consulting engineer in the office of the borough president, are not defined in the charter so far as we are able to discover, except that he is required to be “ an expert in all matters relating to sewers and highways * * * ” (Charter, § 386) ;

† and the only evidence as to the relator’s duties at the period included in the charges was that given by the relator himself, which indicated that he followed in good faith the instructions given by his superior. The testimony of his successor in office as to the duties the latter performed was not competent to show incompetency or inefficiency on the part of the relator in the absence of any proof of rules and regulations defining his duties in force at the time, or other evidence of custom, practice or instructions during the period covered by the charges. There should be opportunity to present evidence on the subject of the duties of the relator by showing that they were defined in some authoritative manner. To that end the matter should be remitted for a new hearing. (People ex rel. Reardon v. Partridge, 86 App. Div. 310; People ex rel. Long v. Whitney, 143 id. 17, 20; People ex rel. Empie v. Smith, 216 N. Y. 95.) Lazansky, P. J., Kapper, Tompkins and Davis, JJ., concur; Scudder, J„ taking no part.

See Laws of 1901, chap. 466, § 386, as amd. by Laws of 1906, chap. 565.— [Rep.