Opinion
December Term, 1898.
William T. Plumb, for the appellant.
John F. Kinney, Corporation Counsel of Rochester, for the respondents.
The appellant insists that he was never legally removed from his position as assistant overseer of the poor; that the poor committee had no power to make the removal, and that a simple ratification of the acts of that committee by the common council did not effect such removal. It may be questioned whether the attempt of the common council to remove the relator as of a time prior, being the time when the committee had designated, was effective, but it was effective as of the time of the ratification. The effect of the resolution of the common council which has been set forth above was to make such removal; the committee had no power to make the removal; that power rested in the common council. ( Powell v. Tuttle, 3 N.Y. 396; Birdsall v. Clark, 73 id. 73; Thompson v. Schermerhorn, 6 id. 92.)
The appellant also claims that the relator, being an exempt fireman, was protected by the Civil Service Act from removal except for cause shown after a hearing had.
The law governing this matter is chapter 184 of the Laws of 1898 (amending chap. 119 of the Laws of 1888), which became a law March 31, 1898, which provides that:
"No person holding a position by appointment in any city or county of this State, or who may be hereafter appointed, receiving a salary from such city or county * * * who shall have served the term required by law in the volunteer fire department of any city, town or village in this State, or who shall have been a member thereof at the time of the disbandment of said volunteer fire department, shall be removed from such position except for cause shown after a hearing had. * * * Nothing in this act shall be construed to apply to the position of private secretary or chief clerk or deputy of any official or department, or to any other person holding a strictly confidential relation to the appointing officer."
The attempt of the learned counsel for the relator to distinguish between the duties of an assistant and a deputy of the overseer of the poor and thus relieve the relator from the exception specified in the statute quoted, cannot be sustained for the reason that the question seems to be settled against him by section 79 of the charter of the city of Rochester (Laws of 1880, chap. 14, as amended by chap. 743 of the Laws of 1897) which provides:
"The overseer of the poor of the city of Rochester, and in case of his absence or inability to act, his deputy or assistant, when appointed by the common council, shall have the power to administer an oath to and examine under oath any person applying to him for relief, and false swearing upon or at such examination shall be deemed wilful perjury. He, and in case of his absence or inability to act, said deputy or assistant, shall have the same power to institute and settle cases of bastardy as are now or hereafter may be conferred upon the superintendents of the poor of a county, and shall possess all the powers and authority of the overseers of the poor in towns."
The statute thus confers the same power upon the deputy as upon the assistant, and vice versa, and it is immaterial which designation is given to this officer as the duties are the same. And we concur in the views expressed by the learned judge at the Special Term, "that the assistant overseer of the poor department is a deputy within the meaning of said act, and the position is one of trust and confidence." And that the provisions of the Constitution and of the statutes pertaining to appointments and promotions in the civil service do not apply to the office in question. (Citing Chittenden v. Wurster, 152 N.Y. 345; People ex rel. Crummey v. Palmer, Id. 217.)
Another difficulty lies in the way of the appellant. It seems to have been held by courts in this State that the remedy in such cases is not by mandamus but by the more deliberate proceeding of an action. ( People ex rel. Hoffman v. Rupp, 90 Hun, 145; People ex rel. Wren v. Goetting, 133 N.Y. 569; People ex rel. Lewis v. Brush, 146 id. 60.)
The Legislature, however, in chapter 821 of the Laws of 1896 (amending chap. 312 of the Laws of 1884) has granted to the Union soldier, sailor or marine the remedy by mandamus as well as by action, but the remedy by mandamus has not been extended to exempt firemen.
The writ of mandamus should be dismissed, but as the question is somewhat novel, without costs.
All concurred.
Writ of mandamus dismissed, without costs to either party.