People ex rel. Cahill v. Green

New York Supreme Court

People ex rel. Cahill v. Green

103 Misc. 717

CourtNew York Supreme Court

DecidedDecember 15, 1916

StatusPublished

Cited by1 cases

This text of 103 Misc. 717 (People ex rel. Cahill v. Green) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Cahill v. Green, 103 Misc. 717 (N.Y. Super. Ct. 1916).

Pincite

Opinion

Chester, J.

The relator seeks by this proceeding to be reinstated as a special agent in the state department of excise. He was appointed a special agent in the department in May, 1915. On the 1st of July, 1916, he was notified by the commissioner of excise in writing that because of insufficient appropriation he was granted an indefinite leave of absence without pay. The relator was an exempt fireman and because of that fact insists that he was improperly removed. He alleges in his petition that after receiving the written notification of his removal he met the defendant and [718]*718had a conversation with him and asserts that'in that conversation the defendant told him that he had not been laid off on account of lack of appropriation but solely on account of stories that defendant claimed had been told to him concerning the petitioner. These stories related to alleged improper conduct of the petitioner while attending a term of court in the service of the department. The relator seeks only an alternative writ, and therefore the defendant has not yet been called upon to deny or admit the matters alleged in the petition. If the relator was in good faith removed by the defendant because of the necessity of reducing the force of special deputies arising from the lack of a sufficient appropriation for their compensation then as a veteran fireman he is not entitled to preference in the retention of his position over others holding similar positions. People ex rel. Davison v. Williams, 213 N. Y. 130. If, however, he was removed because of improper conduct while in the service of the department he would be entitled under the Civil Service Law to have stated charges presented against him and an opportunity to be heard, thereon before he could be properly removed.

Because of the doubt thrown upon the cause of removal by reason of the alleged oral statement claimed to have been made to the petitioner by the defendant it seems to me that a proper case is presented for an alternative writ, in order that the real facts may be ascertained, before the court is called upon to apply any measure of relief.

An alternative writ should, therefore, be allowed.

Application granted.

Free access — add to your briefcase to read the full text and ask questions with AI

Chester, J.

The relator seeks by this proceeding to be reinstated as a special agent in the state department of excise. He was appointed a special agent in the department in May, 1915. On the 1st of July, 1916, he was notified by the commissioner of excise in writing that because of insufficient appropriation he was granted an indefinite leave of absence without pay. The relator was an exempt fireman and because of that fact insists that he was improperly removed. He alleges in his petition that after receiving the written notification of his removal he met the defendant and [718]*718had a conversation with him and asserts that'in that conversation the defendant told him that he had not been laid off on account of lack of appropriation but solely on account of stories that defendant claimed had been told to him concerning the petitioner. These stories related to alleged improper conduct of the petitioner while attending a term of court in the service of the department. The relator seeks only an alternative writ, and therefore the defendant has not yet been called upon to deny or admit the matters alleged in the petition. If the relator was in good faith removed by the defendant because of the necessity of reducing the force of special deputies arising from the lack of a sufficient appropriation for their compensation then as a veteran fireman he is not entitled to preference in the retention of his position over others holding similar positions. People ex rel. Davison v. Williams, 213 N. Y. 130. If, however, he was removed because of improper conduct while in the service of the department he would be entitled under the Civil Service Law to have stated charges presented against him and an opportunity to be heard, thereon before he could be properly removed.

Because of the doubt thrown upon the cause of removal by reason of the alleged oral statement claimed to have been made to the petitioner by the defendant it seems to me that a proper case is presented for an alternative writ, in order that the real facts may be ascertained, before the court is called upon to apply any measure of relief.

An alternative writ should, therefore, be allowed.

Application granted.

Cite This Page — Counsel Stack

Bluebook (online)

103 Misc. 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-cahill-v-green-nysupct-1916.

Opinion

Related

Cite This Page — Counsel Stack