People ex rel. Rogers v. Tinney

184 A.D. 748, 172 N.Y.S. 355, 1918 N.Y. App. Div. LEXIS 6593

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1918
• Status: Published

Opinion

Woodward, J.:

The relator was charged with “ neglect of duty and failure to comply with the rules and regulations of the fire department of the city of Watervliet, as assistant engineer thereof,” and the specifications were a “ failure to remain in the city of Watervliet during the hours when you should have been on duty, as being employed in the city of Troy, and, therefore, not available in case your services should be required, during the month of January, 1918.”

Upon a hearing upon this charge, which was denied by the relator, it was established by the relator’s own testimony that he was employed as a chauffeur in the city of Troy, and that he was away from the city of Watervliet considerable of the time during the period covered by the charge.

The rules of the fire department of Watervliet provide that “ the assistant engineers shall attend all fires and alarms, shall aid and assist the Chief and in his absence shall ‘assume command according to their rank.” It must be apparent that, while the relator only received $200 per year as assistant engineer, the arrangement contemplated that he was to remain within the limits of Watervliet, and be available for all fires. He could, no doubt, take such employment as was offered consistently with this requirement, but to say that the important and exacting duties of an assistant engineer of a fire department can be discharged by one employed as a chauffeur of a pleasure car in a different city is unreasonable, and, upon the relator’s own showing, he was properly removed from his position.

This appeal proceeds upon the theory that because there was only one fire alarm in Watervliet during the month of January, and that this occurred in a district where a different assistant usually responded, the relator was not remiss. But this is a mere quibble. The duties of the relator were not changed because there happened to be no fire which called upon him to act; his duty was to be available in the event of a fire, and this he could not be while engaged as a pleasure car driver in a different city, subject at all times to the requirements of such employment. The virtue of a fireman is in being at the scene of the fire in the shortest possible space of time after the fire is discovered, and any employment of an assistant engineer which materially interfered with this duty was inconsistent with the employment by the city of Watervliet, and was a justification for the removal.

The determination of the respondent should be affirmed, with ten dollars costs and disbursements.

Determination unanimously confirmed, with ten dollars costs and disbursements,