Phillips v. Mayor, Etc., City of New York

The provision of the New York City Charter of 1873 (§ 88, chap. 335, Laws of 1873), declaring that “ no regular- clerk * * * shall be removed until he has been informed of the cause of such a removal and has been allowed an opportunity of making an explanation,” and requiring the true ground of removal to be entered upon the records of the department or board, has no application to a case where' a clerk in a department is discharged, not to make way for another but because the clerkship is abolished and there is no further need of his services, or because there are no funds provided for his payment.

Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of New 'York, in favor of plaintiff, entered upon an order made December 5, 1881, which overruled plaintiff’s exceptions and directed judgment upon an order dismissing plaintiff’s complaint. This action was brought to recover damages for an alleged unlawful removal from his position as a regular clerk in the fire department of the city of New York. The plaintiff was appointed a clerk in the fire department, June, 1874, and was employed in the bureau of the fire marshal. He continued in the position until December 31, 1875, when he was discharged without being informed of the cause of removal, or called upon for any explanation. The reason of his removal, appearing upon the books of the department, was to conform its expenses to a reduced appropriation for the year 1876, and not for any cause personal to the plaintiff. It appeared that, in consequence of the reduced appropriation, the clerical force in the department was reduced, and plaintiff, with others, discharged, no others being appointed in their stead. Plaintiff having been removed without having been informed of the cause or allowed to make an explanation, the proceedings to remove him were in violation of law. (People, ex rel. Sims, v. Fire Comm’rs, 73 N. Y. 487, 440; People, ex rel. Munday, v. Fire Comm’rs, 72 id. 445.) The statute requiring notice had no application to the discharge of the plaintiff. (People, ex rel. Mundy, v. The Fire Comm’rs, 72 N. Y. 445-449; People, ex rel. Sims, v. The Fire Dep't, 73 id. 437; People, ex rel. Cornell, v. Kelly [MSS., March, 1880]; People, ex rel. Evans, v. Park Comm'rs, 60 How. 130.) Having rendered no services during the period covered by the complaint (from January 1, 1876, to April 5, 1880), the plaintiff can recover no salary. ■ (Connor v. Mayor, 5 N. Y. 285; Snith v. Mayor, 37 id. 518; Dolan v. Mayor, 68 id. 274; Mc Veany v. Mayor, 80 id. 185; Wood v. Mayor, 12 J. & S. 325; People, ex rel. Ryan, v. French, Gen. Term, Sup. Ct., January, 1881; Bowen v. Mayor, Gen. Term, Sup. Ct., April 7,1880; N. Y. Daily Register, April 8; Terhune v. Mayor, Com. Pleas, Gen. Term, June 6, 1881; Rowland v. Mayor, 83 N. Y. 376.) Assuming that there was a contract of hiring, plaintiff has no claim for either salary or damages subsequent to December 31, 1875, for the reason that such contract of hiring was a yearly one, and expired by its own limitation on December 31, 1875. (§ 89 of the charter. Donovan v. Mayor, 33 N. Y. 293; Kingsland v. Mayor, 5 Daly, 448.)