Opinion
July Term, 1903.
George W. McKenzie, for the appellant.
James McKeen, for the respondent.
The relator appeals from an order of the Special Term confirming the decision of a referee upon the trial of an alternative writ of mandamus dismissing the writ. The relator was a salaried food inspector in the department of health of the city of New York. In 1898 the said department submitted its estimate for the ensuing year to the board of estimate and apportionment. The estimate specified many of its subordinates, including the relator, with their respective salaries. The department asked an appropriation for these salaries of $163,000. The board of estimate and apportionment allowed $137,000 for salaries and $14,000 for medical school inspectors, making a total appropriation for salaries of $151,000. Thereupon, and at the close of 1898, the board of health for its department adopted a resolve dispensing with the services of twenty-five of its subordinates, including the relator, from and after December 31, 1898, "for the reason that the appropriation for salaries for the year 1899 is insufficient." The relator received formal and official notice of such action.
It was the duty of the department to curtail expenses so as to keep them within its appropriation. (Greater N.Y. Charter [Laws of 1897, chap. 378], § 1542.)
I think that the relator was not entitled to any further opportunity of explanation. He was not a regular clerk or head of a bureau, and, therefore, was not within the purview of section 1543 of the charter. He was not protected by section 13 of chapter 354 of the Laws of 1883 (as amd. by Laws of 1898, chap. 186), because that refers to some personal dereliction, shortcoming or misconduct ( Lethbridge v. Mayor, 133 N.Y. 232), and there is not the slightest intimation that the relator was dismissed the department for any fault. It is hard to see how a personal explanation would cure a lack of departmental moneys to pay a salary. Personal explanation would not avail unless the relator could induce the department to dismiss some other person or to rescale salaries for his benefit; and this, of course, is not the purpose of the statute.
The variance between the allegations of the return and the finding of the learned referee is that of words and not of substance. The return reads: "That there was no money appropriated by the Board of Estimate and Apportionment of the City of New York for the payment of the services of the petitioner, and that at the time of the removal of the petitioner there was no money with which to pay for any services that he might render, and because of such lack of appropriation and lack of money said Board of Health dispensed with the services of the petitioner." The decision is that the head of the department had the right "to dismiss the relator from his employment by reason of the diminished and insufficient salary appropriation for the year 1899." If the salary appropriation was "diminished and insufficient," that was due to the fact that "no money" had been "appropriated" by the board of estimate to pay the salaries of all of its then employees. As to those discharged, then, for lack of departmental funds, there was no money appropriated to continue them in salaried positions. The return and the decision present the same idea, namely, dismissal because the diminished appropriation required it. There is no indication that the reason stated was sham. The board of health placed the relator in its estimate, and asked an appropriation which included his salary. The board of estimate and apportionment cut down the appropriation. This required a reduction of the salaried force, or a general reduction of salaries. The department was not required to scale down the salaries in order to retain all of its employees. In its discretion in internal administration the board dismissed twenty-five employees, including the relator. It merely took a necessary step toward economy, required by the action of the appropriation branch of the city government. Further, none has ever been appointed in the relator's stead, and none has ever been appointed to perform the same, like or similar duties. The mere fact that during the year 1899 various persons were appointed to other places, or that there were promotions, and some few increases of salary in other positions, does not indicate bad faith. There were but one clerk and one laborer appointed and assigned to the same division to which the relator was appointed. The majority of the other appointees were medical school inspectors, for whose salaries a specific appropriation was made. And there is no proof whatever but that the other appointments were more necessary for the public health than the retention of the relator in his position. Nor is bad faith to be inferred from the fact that the department did not exhaust its entire salary appropriation for the year, but carried over a surplus. If in good faith a department initiates a policy of enforced economy, but goes too far in the sense that at the end of the year it is found that such rigid retrenchment was not necessary, that affords no reason for the reinstatement of a subordinate dismissed at the beginning of the year on account of estimated lack of funds, based upon a reduced appropriation. To show that after events possibly indicated that some of the twenty-five dismissed employees might have been retained, and among them the relator, is not to show his present right to reinstatement.
The order should be affirmed.
BARTLETT, WOODWARD, HIRSCHBERG and HOOKER, JJ., concurred.
Order affirmed, with costs.