People ex rel. Vicary v. Thurston

242 A.D. 808

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1934
• Status: Published

Opinion

Order affirmed, with costs. Memorandum. The resolution of the common council of the city of Lockport creating the position in question fixed the duties of the incumbent. The appointee is given authority to investigate only, and not to decide who should or should not receive relief. Relator was an employee and not a public officer. (Matter of Goldschmidt v. Hardy, 177 App. Div. 547; affd., 223 N. Y. 575; La Chicotte v. City of New York, 166 App. Div. 279.) The moving papers show that the position was put in the competitive class, and that the relator successfully passed the required examination, and was appointed, and served the throe months’ probationary period. Under the civil service rules her retention in the service after the expiration of that period was equivalent to her permanent appointment. Her subsequent appointment by the mayor for the term of one year was unavailing. The mayor had no authority to fix the term of the position. Relator may, nevertheless, be removed, if her conduct, capacity or fitness is not satisfactory, provided, however, the reasons therefor be stated in writing, and be filed with the head of the department giving employment or the appointing officer, and the relator be given an opportunity to be heard. This was not done in the instant ease, and without this procedure relator cannot be removed or reduced in rank, assuming, of course, that the facts stated in the moving papers are true. All concur. Present — Sears, P. J., Edgcomb, Thompson, Crosby and Lewis, JJ.