Wallace v. McElligott

249 A.D. 753, 291 N.Y.S. 866, 1936 N.Y. App. Div. LEXIS 5872

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1936
• Status: Published

Opinion

In a certiorari proceeding brought to review the determination of the fire chief and commissioner of the fire department of the city of New York, removing the petitioner from his position as laborer in the employ of the city of New York, assigned to duty in the fire department, determination unanimously confirmed and certiorari proceeding dismissed, without costs. In our opinion, the petitioner, by his failure to claim, prior to or upon the hearing before the commissioner, his now asserted veteran’s status as an honorably-discharged soldier who served in the World war (Civil Service Law, § 22), thereby waived that status, was not entitled to the benefits thereof (Civil Service Law, § 22; People ex rel. Robesch v. President, etc., 190 N. Y. 497; Matter of Sullivan v. Tunney, 248 App. Div. 779), and was removable from Ms position after being allowed an opportumty to make an explanation. (Greater New York Charter, § 1543.) On June 28, 1933, charges of conduct tending to bring reproach or reflection upon the department were duly preferred against the petitioner. The charges related to the falsification of certain time card records. Petitioner was duly notified that he would be given an opportumty to make an explanation in regard to said charges before a deputy fire commissioner on July 2, 1935. Although denying the charges, petitioner failed to make such explanation and in effect admitted Ms dereliction. The evidence, in our opinion, warranted the determination of Ms guilt subsequently made by the fire commissioner (Id.), now under review. Furthermore, if we assume that the petitioner had such veteran’s status and was entitled to the benefits thereof, Ms removal followed a hearing before the commissioner, upon due notice, upon stated charges, witMn the purview of section 22 of the Civil Service Law, and the evidence was sufficient to warrant the removal. (Matter of Sullivan v. Tunney, supra.) Present — Lazansky, P. J., Young, Hagarty, Adel and Taylor, JJ.