People ex rel. Schulum v. Harburger

132 A.D. 260, 116 N.Y.S. 994, 1909 N.Y. App. Div. LEXIS 1473

Opinion

Scott, J.:

Defendants appeal from an order granting a peremptory writ of mandamus directing them to reinstate the relator in the position of coroner’s clerk, and from an order denying a motion for a new trial of the issues of fact.

On August 1, 1904, the relator was appointed by one Gustave Scholer, then a coroner of the city of Yew York,- as private clerk at a salary of $2,000 per annum. On January 1, 1906, the said Scholer having ceased to be a coroner, and a new board of coroners having come into office, the relator was summarily removed from the position he then held without charges or trial. On May 23, 1906, he sued out a writ of alternative mandamus for the purpose of securing his reinstatement. Issue was joined thereon, and the. matter came on for trial before the court and a jury, and a verdict rendered in favor of the relator by direction of the court, whereupon, after a motion for a new trial had been made and denied, the order now appealed from was entered directing the relator’s reinstatement. His contention is that he was protected from removal because he had been an active member of a volunteer fire company in the borough of Richmond, and known as the Richmond Hook and Ladder Company Yo. 4, at the time of its disbandment on October 1, 1905, on which date the paid fire department of the city of Yew York was extended to the fire district formerly protected by said Richmond Hook and Ladder Company Yo. 4. The statute upon which relator relies is section 21 of -the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1904, chap. 697), reading as follows: “ Yo person holding a position by appointment .or employment in the State of New York, or in the several cities, counties, towns or villages thereof * * * who shall have served the term required by law in the volunteer fire department of any city, town or village in the State, or who shall have been a member thereof at the time of the disbandment of such volunteer fire department, shall be removed from such position except for in competency or misconduct shown after a hearing upon due notice upon stated charges, and with the right to such employee or appointee to a review by a writ of certiorari.” The reasons which led the Legislature to extend this especial immunity from arbitrary removal to those who have been volunteer firemen are obvious. Formerly the only protection against fire was that furnished by volunteers who served without pay and in so doing exposed themselves to the risks and discomforts attendant upon such service. By degrees paid fire departments were established in the larger cities, but' the volunteer system continued, as it still continues, in rural and suburban communities. The obvious purpose of section 21 of the Civil Service Law was to extend to those who had thus voluntarily devoted themselves to this particular public service, as a sort of reward and compensation, immunity from arbitrary removal. _ The dominating note of this section is that this especial immunity is extended as a reward for service performed, and it would be a clear perversion of the intent of the act to extend it .to those who have acquired mere nominal membership in a volunteer department without actual rendition of service, or any evidence of an intention to serve. The facts attending the relator’s membership in the Richmond fire department show clearly that lie never became a member of the fire company in good faith, and when he joined neither expected nor intended to perform any fire duty, and in point of fact never did perform any. When the present city of New York was created the former cities of New York and Brooklyn were served by paid fire departments,' but Richmond and Queens counties, being rather suburban than urban, were served by volunteer fire departments. Section 722 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466, and Laws of 1904, chap. 700) provided among other things as follows : “ The paid fire department system shall as soon as practicable be extended over the boroughs of Queens and Richmond by tlie £re commissioner, and thereupon the present volunteer fire departments now maintained therein shall be disbanded.”

Evidence was offered on the part of the defendants showing that early in the year 1905 the proper municipal authorities took up the subject of carrying the foregoing provision of the charter into effect and that Richmond Hook and Ladder Company No. 4 was one of the volunteer companies which it was proposed to discontinue and disband. That company had, prior to June 1, 1905, twenty-three members ; the initiation fee for each member was two dollars, and every person elected was required to provide himself with a uniform within ninety days after his election. On June 1, 1905, the by-laws were suspended or amended so as to make radical changes in their requirements as to new members. The initiation fee was increased to ten dollars, and other charges were imposed making the total payment by a new member thirteen dollars and twenty-five cents instead of two dollars as theretofore. The requirement as to providing a uniform was extended thirty days, and the limit of membership was raised to 999. Thereupon at the same meeting, which was adjourned several times for the purpose, 985 new members were elected', of whom the relator was one, and among whom were a number of others who have in other proceedings (heretofore unsuccessfully) striven to avail themselves of the protection of the statute. The relator never procured a uniform because the company was disbanded within 120 days after he was elected. He attended, as he says, one fire during that time, but whether as a spectator ór a working fireman does not appear. He is extremely frank in telling why he joined the company. He says that he has always lived and voted in Manhattan, and lived there when he joined the fire company. He never .lived in Richmond county, although he visited a friend there during the summer of 1905. He testified that he went to Richmond county for the purpose of joining the fire department, and that his object in doing so was to become a volunteer fireman, and take advantage of the Civil Service Law, so as to protect himself against removal from the position he then held. It is perfectly clear that the relator never joined the fire department in good faith, with the intention of performing service therein, but that his action in that regard was a mere sham, taken for an ulterior purpose, and that he never brought himself within the spirit and intent of .the act upon which he relies, and if the court had‘"submitted the question, of good faith to the ¡jury,.-as defendants requested, the inevitable verdict must have been that he did not join the fire company -in good faith. Any other verdict would have been against the" evidence; We concur with tile views expressed by Mr, Justice Kelly (Matter of Bell, N. Y. L. J. Jan. 18, 1906), when he said: “I think the preference in employment and the right to. hearing before removal given in section 21 of the Civil ,Service Law * * * to members of volunteer fire depart^ ments, and to persons, who are members at the time of disbandment of such volunteer fire departments^ applies to. active members yho perform the duties of volunteer firemen. As to ;such persons, who. expose, life and limb Lor the protection ¡of the-public the Legislature might well grant them preferences and privileges not enjoyed .by-others. I do. not interpret the provisions, of- law cited to mean that a man obtains' such preference over his. fellows simply because' his name is inscribed on the'roll of a fire company in some distant part of the State. Such a construction of the statute would be unjust to the bona fide volunteer firemen and to the public.”

The relator’s membership in the Richmond fire' company was a mere sham and fraud, and did not bring, him within the clear intent, and reason. of the statute,. and his application for a mandamus should have been denied on that ground alone."

There are other reasons, however,, why he must fail. The relator was not appointed by the board of coroners, nor was. he appointed pursuant to'section 1571 of. the revised charter, which authorizes1 the coroners in each borough to appoint "a. clerk, as was the ease: with the relator in People ex rel. Hoefle v. Cahill (188 N. Y. 489). Relator was appointed by Coroner Scholer alone, .and his .appointment Was- as “ private ¡clerk.” He never passed any civil service examination, and his appointment was authorized by section 12 of the Civil Service Law, which reads as follows: “ The exempt class.— The following positions shall be included ‘ in the exempt, class : * * * 3. One clerk, .and one deputy clerk if authorized by law, of each court, and one, cleric of each elective judicial officer.”

The coroners are elective judicial officers (People v. Jackson, 191 N. Y. 293), and each coroner is, therefore,, entitled to appoint, without reference to ¡any civil service list, one personal clerk. (Goldencranz v. Municipal Civil Service Commission, N. Y. L. J. Nov. 8, 1902; Munch v. City of New York, 47 Misc. Rep. 128 ; O'Connor v. City of New York, 48 id. 407.) Such an appointment is personal to the judicial officer making the appointment and dies when he ceases, to "hold office. (People ex rel. Whitman v. Goldenkranz, 38 Misc. Rep. 682.) In the very nature of things relator’s position as private clerk to Coronér Scholer came to an end when Scholer ceased to be coroner, and consequently relator held no position on January 1, 1906, and there is none to which he can be reinstated. Furthermore, his position as private clerk to an individual coroner is strictly analogous to, if not identical with, that of private secretary to which, by express exemption, section 21 of. the Civil Service Law does not apply.

The result is that the orders appealed from must be reversed and the writ dismissed, with fifty dollars costs to the defendants.

Patterson, P. J., McLaughlin, Laughlin and Houghton, JJ., concurred.

Orders reversed and writ dismissed, with fifty dollars costs to the defendants. Settle order on notice.