#### The People ex rel. John R. Shields, Relator, *v.*John J. Scannell, as Fire Commissioner of the City of New York, Respondent.

(Supreme Court, New York Special Term,

June, 1899.)

Civil Service — Chap. 184,'Laws of 1898, requires the transfer of a veteran, whose position is abolished, to another branch of the service.

Where a veteran holds a competitive position as assistant secretary-in the office óf the fire commissioner of a city of the first class, the commissioner has no power, upon abolishing the position, to discharge him summarily but is required by chapter 184. of the Laws of 1898 to transfer him “ to any branch of the said service for duty in such position as he may be fitted to fill, receiving the same compensation therefor.”

Application for a peremptory writ of mandamus.

C. J. G. Hall (Uriah W. Tompkins of counsel), for relator.

John Whalen, corporation counsel; Charles Blandy and William B. Crowell, assistants, for respondent.

Chester, J.

The relator seeks a peremptory writ of mandamus to compel the defendant to restore him to a position *735formerly occupied by him in the public service in the fire department in the city of Hew York.

He is a veteran of the United States army in the civil war. He was appointed a clerk in this department in 1873, and continued to serve in various clerical positions therein down to the time of his removal on the 1st of " April, 1898'. At that time he was occupying the position of assistant secretary at a compensation of $3,000 per annum. He was on that day served with the following notice :

> “ Headquarters of Fere Department of the City of Hew York.

> “Office of the Fire Commissioner, Hew. York, *April*1, 1898.

> “ Special Orders.

> “ No. 52 (extract).

> *“*The position of assistant secretary in this department, Borough of Manhattan, is hereby abolished from 4 o’clock this p. m., and the services of John It. Shields,, the incumbent thereof, no longer required.

> “By order of John J. Soannell,

> *“ Commissioner.*

> “Augustus T. Dooharty,

> *“ Secretary ”*

On this removal, no charges of any kind were made against the relator; no hearing had as to the cause of his removal, and no reason given by the respondent for the discharge other than is stated in the notice above given. The position held by him was not that of private secretary, chief clerk or deputy of any official or department or to any other person holding a strictly confidential relation to the appointing officer.

The relator insists that his discharge was unlawful, and that he is entitled to be restored to the position: He bases his claim upon chapter 184, Laws 1898, amending the Veterans Act, and chapter 186, Laws 1898, amending the Civil Service Law.

There has been much controversy as to whether or not these amendments to the staté law apply to the city of Hew York, but. it has now been determinéd that they do apply to that city. People ex rel. Fleming v. Dalton, 158 N. Y. 175; People ex rel. Tate v. Dalton, 158 N. Y. 204.

*736This, dase, must be determined, therefore, with reference to the state law, as found in the amendments of 1898. Prior to the amendments veterans were protected from removal “ except for 'cause shown after a hearing had.” .

The amendment to-.the Veterans Act provided .that “in cities of the first class, if the position so held by any such .honorably discharged soldier, Sailor or marine or volunteer fireman shall become unnecessary or be abolished for reasons of economy or otherwise, the said honorably discharged soldier, sailor or marine, or volunteer fireman holding the same shall not be discharged from the public service, but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill, receiving the same compensation therefor.”

Even if it be conceded that the attempted removal and the alleged abolishing of the position occupied by the -relator was made by the respondent in good faith for reasons of economy or otherwise, yet we have in this amendment, express prohibition of a discharge from the public service in such a case. The language of the statute is entirely plain and provides that the said honorably discharged soldier shall not be -discharged from the public service, but shall be transferred to any branch of the said service for duty in such position as he may be -fitted to fill, ■ receiving the same compensation therefor.

It appears, under the proofs in this case, that the duties performed by the relator were distributed for a time among various other clerks, in the office; that on the day of the alleged discharge another clerk was appointed at a salary of $2,400, and soon thereafter two other clerks were appointed, one with a salary of $2,500, and one at a salary of $2,000; and that some of the relator’s duties were discharged by. one or the other of these new clerks.

The testimony is sufficient to convince me that the relator was-.fitted to fill any of the positions to which these several clerks were assigned; Even though it may be that but a portion of the. duties which the relator had performed now devolve upon these*' new clerks yet ’the fact that the necessities of the public service arising from the consolidation of several municipalities under the Greater Hew York charter, or otherwise, required so many new clerks so soon after the relator’s dismissal, is' quite convincing' ■ proof that the prohibition contained in the statute with reference to' discharging a veteran from the public service would not have worked any injustice to the municipality in the present instance *737if the respondent had not attempted his discharge but had transferred him to one of the positions now filled by others; and I think the respondent was bound to offer the first of these positions to this relator if he were willing to work for the salary fixed for the position, and if not, that the respondent could have adjusted the salary to meet the requirements of the statute.. I choose, however, to put my decision upon the ground that the discharge in this case was prohibited by the express terms of the statute, and not upon the question as to whether or not the respondent acted in good faith in making the dismissal.

So, also, when we look to the amendment of 1898 to the Civil Service Act, it appears that this removal has been made in violation of the amendment. The relator was a clerk holding a competitive position in the fire department, and he was entitled to have the reasons for his removal stated in writing and filed, and an opportunity afforded to him to explain. Laws 1898, chap. 186, § 3.

_ . The evidence is clear that no such opportunity was afforded him, but that he was removed summarily.

It is urged by the respondent that the Veteran Acts do not protect an incumbent of a position when it has been abolished for lack of work or for reasons of economy, and many cases are -cited in support of that principle. These cases, however, were all decided prior to the amendment of the Veterans Act in 1898. That amendment makes a modification of the principle decided, in these cases, and expressly provides for the protection of veterans in cases of that kind in cities of the first class.

So, I think that the cases cited, modified as they are by the .amendment, will not serve to protect the respondent in his attempted removal of the relator. I think that he was unlawfully removed and that he is entitled to the peremptory writ of mandamus he asks for commanding the defendant to restore him tc the public service. ' 0

Mandamus granted, as prayed for, with costs.

Mandamus granted, with costs.