#### The People of the State of New York ex rel. Nathan April, Appellant, *v.*Edmond J. Butler, Tenement House Commissioner, Respondent.

First Department,

December 20, 1907.

Municipal corporation — removal of tenement house inspector, city of New York — grounds of removal misstated —■ mandamus denied.

A tenement house inspector who prior to discharge for misconduct has been'given opportunity to explain the charges against him as required by section 1543 of the charter of the city of Hew York, will not be reinstated on man-*791damns merely because the tenement house commissioner when entering the grounds for removal upon the records as required by said section, by inadvertence stated that the removal was upon subsequent charges of which the relator had been notified but which he had failed to explain, if in fact the record has been corrected and a copy filed with the municipal civil service commission.

Appeal by the relator, Nathan April, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of February, 1907, denying his motion for a writ of mandamus requiring the defendant to reinstate the relator as inspector of tenements, and also from an order entered in said clerk’s office on the 11th day of March, 1907, denying the relator’s motion for leave to renew.

*Samuel M.*Levy, for the appellant.

*Theodore*Gonnoly, for the respondent.

Ingraham, J. :

The relator was an inspector in the tenement house department of the city of New York. Charges of misconduct and incompetency were preferred against him, a copy of which was served upon him, and he was given an opportunity to explain them at a time and place named. He was then suspended from duty without pay pending the disposition of such charges against him. While these charges were pending the relator tendered his resignation, which the commissioner did not accept. After the relator’s explanation had been submitted to the commissioner additional charges of misconduct and incompetency were made against him, a copy of which was also served upon him and a time fixed to submit his explanation to the commissioner. On the day that he was to appear before the commissioner the relator did not appear but sent a letter stating that he was unable to attend owing to an attack of influenza. No physician’s certificate or affidavit was submitted. The relator did not subsequently appear before the commissioner after he recovered from his attack of influenza, nor does it appear that this communication was received by the commissioner on the day the relator was required to submit his explanation. Subsequently the defendant dismissed the relator, but through inadvertence the ground of dis*792missal was placed upon the last charges that were made and in rela-' tion to which the relator had submitted -no explanation. As soon as attention was called to this mistake the record was corrected by the defendant so tlia-t it. appeared that the dismissal was upon the charges as to which the relator had made an explanation, and in reply .to this application for a mandamus the commissioner submitted an affidavit in which he states that the relator was actually dismissed upon the charges as to which he had made.an explanation, as he-believed that the relator was guilty of such charges.

It is entirely clear that the charge of extortion fully justified.the defendant in dismissing the relator; that, the defendant acting upon these charges actually found him guilty and acted upon them, and the only claim made is that the record showed that the removal was upon the charges as to which the relator had had no opportunity of explanation. The relator based his right to be reinstated upon section 1543 of the charter (Laws of 1901, chap. 466) which provides that no employee in the classified civil service subject to competitive examination shall be . removed until lie has been allowed an opportunity of making an explanation, and in every case of a removal the true grounds thereof shall be forthwith entered upon the records of the department and a copy filed with the municipal civil service Commission. The prohibition against a removal is that the relator should not he removed until he has been allowed an opportunity of making an explanation. It is npt claimed that he was not allowed, an opportunity of making- an explanation in regard to the charge of extortion, and by the affidavit'of the defendant it appears that he was removed upon those charges in relation to which his explanation liad been heard. It seems to, me, therefore,, that therq can be no question as to the validity of the discharge. The statute does not provide that a failure of the commissioner to perform the duty imposed by this last clause'of the section above quoted in failing to file and transmit to the municipal civil service commission the true grounds thereof should entitle the removed officer to be reinstated, nor is there any provision which fixes the time within which the officer making the removal must enter upon the records of the department and file with the municipal civil service commission the grounds of removal. ’ He could undoubtedly be required to perform that duty by mandamus, but an omission to state .the true grounds *793of removal would not entitle the removed officer to reinstatement. In this case it appeared when the motion was made the commissioner had attempted to comply with this provision but by inadvertence had stated the wrong charges that he had acted upon in removing the relator ; and that mistake had been corrected so that when the application came before the court the statute had been complied with. Charges had been made; copies served upon the relator ; lie had been allowed an opportunity of making an -explanation; he had explained; the explanation was not satisfactory: The commissioner found him guilty of the charges and removed him, and had entered upon the records, of the department the true grounds of the removal and a copy thereof had been filed with the municipal civil service commission. The statute had, therefore, been complied with, and certainly under those circumstances the court would not have been justified in reinstating the relator.

The orders appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.

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

Orders affirmed, with ten dollars costs and disbursements.