#### Matter of the Application of John S. Porter for a Peremptory Writ of Mandamus *v.*Henry E. Howland et al., composing the Board of Managers of the Manhattan State Hospital, Respondents.

(Supreme Court, New York Special Term,

August, 1898.)

Officer — Removal by abrogation of position, through a disallowance of estimates for its support.

*Semble,*that where, for economical reasons, the state commission in lunacy has disallowed an estimate of a state hospital for the payment of a class of mechanics and laborers employed only from day to day, and one of them, a painter, is consequently discharged by the hospital officials, he is without remedy as his position has been abrogated; but, in any event, he cannot procure restoration by mandamus against the managers of the hospital where the Insanity Law (Laws of 1896, chap. 545) places the appointing power with the superintendent and treasurer of the hospital and gives the superintendent power to remove for a cause stated in writing and after an opportunity to be heard, and these requirements have been complied with by him.

Motion for a peremptory writ of mandamus.

Louis J. Grant, for petitioner.

George C. Austin, for respondents.

Bookstaver, J.

From the papers it appears that the petitioner was appointed to the position of painter at the State Insane Asy*435lum on Ward’s Island on .the 2d of September, 1896, after having passed the required civil service examination, and was assigned to the work of a painter in the Manhattan State Hospital on the same day. His appointment or assignment was made from the civil service list, which comes within the provisions of class II, group N, subdivision 1 of the State Civil Service Commission. Mechanics and laborers of the class toi which the petitioner belonged are always employed at day’s wages, and, as appears from the papers, are notified upon their engagement that they are employed from day to day and that their employment may terminate at any time. •

It further appears from the papers that in 1897 the estimates for the Manhattan State Hospital for the month of July were submitted to the'state commission, and that among other items therein contained was one for the payment of the class of employees to which the petitioner belonged. For economical reasons the state-commission disallowed this item in the estimate, and, consequently, the employees of this class, including the petitioner, had to be discharged. This, in my judgment, was equivalent in its practical effects to abolishing the office to which the petitioner was appointed.

- It also appears from the papers that when the petitioner’s services were dispensed with he was told the reason therefor and that he had no objection thereto, nor did he take any steps thereafter to obtain a reinstatement until February 25, 1898, nearly nine months afterwards, when he made a demand upon the president of the board of managers for his reinstatement,

The papers do not show that the petitioner is either a veteran within chapter 312, Laws of 1884, or a veteran or volunteer fireman within chapter 119, Laws of 1888, and the acts amendatory thereof.

The petitioner, being employed from day to day, Ms services could be dispensed with at any time on my judgment. The position to wMch he was appointed was not in any sense a permanent one, but merely temporary in its character and liable to be terminated at any time for the reasons that were given upon Ms discharge. Besides, this discretion is expressly conferred upon the superintendent of the hospital by the provisions of subdivision 2, section 35, chapter 545, Laws of 1896. In Phillips v. Mayor, 88 N. Y. 245, the statute before the court provided that *“*no clerk shall be removed until he has been allowed an opportunity of making an explanation,” and the court, by Earl, J., said: “ The object of this *436provision was to prevent removal except for cjause, and -then only after a hearing * * * was had to enable the clerk or officer proceeded against to satisfy the body or officer having the power of removal that he should be retained. The provision has noi ap^ plication to a case like this. This is not, properly speaking, a case of removal withiy. the meaning of the statute. Here the office or clerkship was abrogated, and there was no more need of plaintiff’s services. He could not claim that the office or- clerkship-should be retained for his benefit, and the fire commissioners were not obliged to consult, him before abrogating it. And further, the statute does not apply to a case like this where the officer is re^ rboved, not to make way. for another, but because his services are ho longer needed, ór because there are no .funds provided for his payment.” ,

' In the base under consideration1 the plaintiff cannot rely upon any provision similar to the statute under consideration in that case, because there is no- such provision.- In this case no. funds were provided for.payment of his services, and consequently his dismissal was the same in legal effect as ah abrogation of his position. See, also, People ex rel. Traphagen v. King, 13 App. Div. 400; People ex rel. Linnekin v. Ennis, 18 id. 412; People ex. rel. Corrigan v. Mayor, 149 N. Y. 215.

I am, therefore, of the opinion that the mandamus should be denied on its merits, but even if I am mistaken in this the mandamus should not be granted against the present respondents, for the board of managers of the hospital have nothing to doi with the employment, or discharge of laborers. The only officials whom it appoints are the superintendent and treasurer of the hospital-. § 34, chap. 545, *supra.*

The superintendent of the hospital, upon whom is conferred the power to appoint and discharge employees, subject, of course, to the civil service laws, is the person who actually.discharged the petitioner and against whom the mandamus should issue, if any one. § 35, chap. 545, *supra.*

The mandamus is, therefore, denied, with $10 costs.

Mandamus denied, with $10 . cost.”