#### Matter of the Application of Michael Kenny, for a Writ of Mandamus, *v.*James Kane, as Commissioner of Sewers, et al., Defendants.

(Supreme Court, New York Special Term,

June, 1899.)

Civil service — Chapter 186, Laws of 1898, does not protect a sewer inspector summarily discharged as unnecessary.

. Where a sewer inspector of the borough of The Bronx, appointed after the Civil Service Act known as chapter 186 of the Laws of 1898, went into effect, Is discharged by the commissioner of sewers because in bis judgment the services of the inspector are no longer required for the proper supervision of the work, the inspector, although included in the competitive schedule, is not entitled to the protection of the provisions' of said act relative to the filing of written reasons for a removal and those affording the incumbent an opportunity to explain. ,

Mandamus to compel the commissioner of sewers and the deputy commissioner of sewers for the borough of The Bronx to reinstate the petitioner as inspector on the Sedgwick avenue sewer.

Roger Foster, for petitioner.

John Whalen, corporation counsel (Terence Farley, of counsel), for defendants. ,

Scott, J.

On Rovember 18, 1898, the applicant was appointed an inspector of a sewer in process of construction on Sedgwick avenue. ' A man named Purdy had previously been appointed inspector on the same sewer, and the reason why the applicant was also appointed was that the commissioner considered that the work, which was of an extended and important character, required the services of two' inspectors. As the winter advanced and the weather grew colder the exigencies of the work called for the services of only one inspector, and consequently Purdy, haw' mg been longest employed,, was retained and the applicant discharged. The commissioner did not, comply with' the provisions of section 3, chapter 186, Laws of 1898, by stating in writing and filing the reasons for the removal, or giving the applicant an oppor*681tunity to make an explanation, although he held a place in the competitive schedule. On an application of this nature all the facts stated by the defendant must be accepted as true, and, it must be assumed, therefore, that the applicant was not discharged by reason of any alleged dereliction of duty, or personal unfitness such as might have been explained or denied if he had had an opportunity to explain, but only for the reason that in the opinion of the commissioner his services were not required for the proper supervision of the work. Of this the commissioner was the sole judge, and it was his duty as well as his right to keep the expense of supervision down to the lowest point consistent with an assurance of good work by the contractor. I do not think that the act of 1898 was intended to apply to a case like this. To give an employee an opportunity to make an explanation when there is nothing to explain would be an idle ceremony. In analogous cases it has repeatedly been held that a person protected by statutes similar to that of 1898 might be removed without a hearing where the cause for removal was, not an alleged dereliction or unfitness, but some reason which no explanation could remove, such as an exhaustion of appropriation, an abolition of an office, or the devolution of the duties of an office upon some other person already holding another position. The fact that in his letter of appointment the applicant was informed that his employment would cease on the completion of the work under the contract, does not aid him. Those words were merely words of limitation, and intended to advise the appointee that his tenure was not to be permanent. They did not express a contract that the employment should continue in any event until the completion of the work, whether the applicant’s services were needed or not. In? deed, if the commissioner should have attempted to bind the city, it would be difficult to find warrant in the law for so doing. The motion for a peremptory mandamus must be denied. If the applicant considers that he can successfully controvert any question of fact material to his contention, he may take an order for a writ of alternative mandamus.

Ordered accordingly.