People ex rel. Hodkinson v. Johnson

153 A.D. 890, 138 N.Y.S. 385

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1912
• Status: Published

Opinion

Scott, J.:

The relator has sued out a writ of certiorari to review his removal by the fire commissioner of the city of New York, Relator was an honorably discharged veteran holding the position of oil surveyor in the fire department, but not a member of the uniformed force. As such he could be removed only “ for incompetency or misconduct shown after a hearing upon due notice upon stated charges.” (Civ. Serv. Law, § 22.

*) The record shows that the statute was substantially complied with in scarcely any particular; and demonstrates that the commissioner either misconceived his duty in the premises or was in such haste to discharge the relator that he disregarded the mandate of the statute. It is said that relator, by not asserting his right to due notice, the production of legal evidence and the service of charges in such manner that he could be prepared to defend himself, waived all these rights and cannot now insist that they were invalid. The circumstances attending the alleged trial and the manner in which it was conducted fully explain and account for relator’s failure to protest at the time and forbid the conclusion that he intended to waive his right to legal and orderly proceeding. Although for those reasons the order of the commissioner must be annulled and the relator reinstated, the commissioner may still, if he sees fit, institute new proceedings for the relator’s discharge upon the same charge, keeping within the mandate of the . statute. The writ must be sustained, the determination of the commissioner annulled and the relator reinstated, with fifty dollars costs and disbursements. Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred. Writ sustained, determination of commissioner annulled and relator reinstated, with fifty dollars costs and disbursements.. Order to be settled on notice. •

Consol. Laws, chap. 7 (Laws of 1909, chap. 15), § 22, as aind. by Laws of 1910, chap. 264.—[Rep.