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Civil Service Law (L. 1899, ch. 370), $ 20. legislative act and existing at the time the registration lists are furnished. The boroughs of the city of New York cannot be divided into districts and separate lists maintained therein for the purpose of the appointment of bridge tenders. People ex rel. Melledy v. Shea, 73 App. Div. 232, 76 N. Y. Supp. 679. But a separate list for the appointment of bridge tenders may be made for each of the boroughs in the city of New York. People ex rel. Coyne v. Shea, 73 App. Div. 239, 76 N. Y. Supp. 683.
§ 20. Preferences allowed honorably discharged soldiers, sailors and marines.- In every public department and upon all public works of the state of New York and of the cities, counties, towns and villages thereof, honorably discharged soldiers, sailors and marines from the army and navy of the United States in the late civil war who are citizens and residents of this state, shall be entitled to preference in appointment and promotion without regard to their standing on any list from which such appointment or promotion may be made to all competitive and non-competitive positions provided their qualifications and fitness shall have been ascertained as provided in this act and the rules and regulations in pursuance thereof; and the persons thus preferred shall not be disqualified from holding any position in the civil service on account of his age or by reason of any physical disability provided such age or disability does not render him incompetent to perform the duties of the position applied for. Whenever any list of eligible persons, prepared under authority of this act, shall contain the names of honorably discharged soldiers, sailors and marines entitled to preference as aforesaid any reference in this act or in the rules and regulations in pursuance thereof to the persons standing highest on such list shall be deemed to indicate those standing highest of those entitled to preference by the provisions of this section and such person shall be given preference on any list of registered applicants for employment in the labor service, in accordance with the dates of their several applications as though such applications had been filed prior to those of any persons on such lists not entitled to the preference provided by this section. A refusal to allow the preference provided for in this and the next succeeding section to any honorably discharged soldier, sailor or marine or a reduction of his compensation (intended to bring about his resignation) shall be deemed a misdemeanor, and such honorably discharged soldier, sailor or marine shall have a right of action therefor in any court of competent jurisdiction for
Civil Service Law (L. 1899, ch, 370), S 21,
damages, and also a remedy by mandamus for righting the wrong. (Amended by L. 1902, ch. 270, in effect March 27, 1902.)
Examination to secure promotion.- A veteran who submits to an examination to obtain a promotion, and receives thereon a rating which does not entitle him to be placed upon the list from which the promotion is to be made, is not entitled to review the rating of the examiners by a mandamus proceeding. The preference accorded by this section is only to be given when a veteran's name appears upon a list from which an appointment can be made, and then only when his qualifications and fitness shall have been ascertained as provided for in the act and the rules and regulations adopted in pursuance thereof. Matter of Allaire v. Knox, 62 App. Div. 29, 70 N. Y. Supp. 845.
Fitness of veteran for promotion.-- The placing of a veteran's name on the eligible list for promotion does not give him the absolute right to the promotion. He is only entitled to preference when he is fitted for the office, and such fitness should be determined by the appointing power and not by the court. People ex rel. Mesick v. Scannell, 63 App. Div. 243, 71 N. Y. Supp. 383.
Competency of veteran.- The certification by a municipal civil service commission after a competitive examination of the name of a veteran upon the list of those eligible for appointment, is conclusive as to the veteran's fitness for the appointment in so far as his competency to perform the duties of the position is concerned. People ex rel. Hamilton v. Stratton, 79 App. Div. 149, 80 N. Y. Supp. 269, affirmed, 174 N. Y. 531.
Where an eligible list contains the names of three persons only one of whom is a veteran, the veteran is entitled to an absolute preference in appointment, although the other persons on the eligible list passed a higher examination than did the veteran. People ex rel. Weintz v. Burch, 79 App. Div. 156, 80 N. Y. Supp. 274.
Action to recover damages for unlawful removal.- A veteran unlawfully removed, who obtains his reinstatement as a result of certiorari proceedings instituted by him, and thereafter brings an action against the officer who removed him to recover damages resulting from his wrongful removal, cannot recover in such an action the sums which he expended for counsel fees in procuring his reinstatement. Fallon v. Wright, 82 App. Div. 193, 81 N. Y. Supp. 758.
$ 21. Power of removal limited.- Every person whose rights may be in any way prejudiced contrary to any of the provisions of this section shall be entitled to a writ of mandamus to remedy the wrong. No person holding a position by appointment or employment in the state of New York or in the several cities, counties, towns or villages thereof who is an honorably discharged soldier, sailor or marine, having served as such in the Union army or navy during the war of the rebellion, or who is an honorably discharged Civil Service Law (L. 1899, ch. 370), $ 21. soldier, sailor or marine, having served as such in the volunteer army or navy of the United States during the Spanish war or who shall have served the term required by law in the volunteer fire department of any city, town or village in the state, or who shall have been a member thereof at the time of the disbandment of such volunteer fire department shall be removed from such position except for incompetency or misconduct shown after a hearing upon due notice upon stated charges, and with the right to such employe or appointee to a review by a writ of certiorari. 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, and it is hereby made the duty of all persons clothed with power of appointment to make such transfer effective. The burden of proving incompetency or misconduct shall be upon the person alleging the same. In every county of the state wholly included within the limits of a city but not comprising the whole of such city, no regular clerk or head of a bureau or person holding a position in the classified state civil service, subject to competitive examination, shall be removed until he has been allowed an opportunity of making an explanation; and in every case of a removal the true grounds thereof shall be forthwith entered upon the records of the department of the office in which he has been employed, and a copy filed with the state civil service commission. In case of a removal, a statement showing the reasons therefor shall be filed in the department or office where such clerk, head of a burrqu or person had been employed. Whenever such offices, positions or employments in every county of the state herein before specified are abolished or made unnecessary, it shall be the duty of the head of the department or office in which such persons had been employed, to furnish the names of the person or persons affected to the state civil service commission, with a statement in the case of each of the date of his original appointment in the service. It shall be the duty of the state civil service commission forthwith to place the names of said persons upon a list of suspended employes for the office or position of* for the class of work
Civil Service Law (L. 1899, ch. 370), $ 21.
in which they have been employed, or for any corresponding or similar office, position or class of work, and to certify the said persons for reinstatement or re-employment in the order of their original appointment before making certification from any other list. The failure of any person on any such list for reinstatement or re-employment to accept after reasonable notice, an office or position in the same county and at the same salary or wages as the position formerly held by him, shall be held to be a relinquishment of his right to reinstatement as herein stated. Nothing in this section shall be construed to apply to the position of private secretary, cashier or deputy of any official or department. (Amended by L. 1902, ch. 270, and L. 1904, ch. 697, in effect May 9, 1904.)
Unlawful removal; liability for salary.- Where an officer or employe of a municipality, holding his position under the civil service law, is illegally removed, and he institutes proceedings and establishes the illegality of his removal in a court of competent jurisdiction, and notice of the adjudication is brought to the municipality, such municipality is liable to the officer or employe for the amount of his salary or compensation, notwithstanding such salary or compensation may have been paid to another. If an appeal be taken by the municipality, and pending the appeal continues to pay the person keeping the office, it does so at its risk, and may be obliged to again pay the salary to the officer entitled to the office in case the adjudication is finally affirmed by the court of last resort. Jones v. City of Buffalo, 79 App. Div. 328, 79 N. Y. Supp. 754, affirmed, 178 N. Y. 45.
Confidential positions. The chief clerk in the tax department for the borough of Manhattan in the city of New York occupies a confidential position and cannot be peremptorily discharged without the preferring of charges or the assigning of reasons. The fact that a position has been classified by the civil service commissioners in the non-competitive schedule is entitled to great weight in determining whether the incum-. bent of such position holds a confidential relation to the appointing power. People ex rel. Berlinger v. Wells, 85 App. Div. 378, 83 N. Y. Supp. 376.
Retention of veteran.- It is clearly the intent of the above section to prefer the veteran in his tenure of employment, and it would seem to be a clear violation, both of the Constitution and legislative intent, to permit his discharge for reasons of economy, although the position which he filled still continues. Matter of Stutzbach, 62 App. Div. 219, 70 N. Y. Supp. 901. See People ex rel. Dixon v. Simonson, 64 App. Div. 312, 72 N. Y. Supp. 84.
In a city of the second class where it becomes necessary to discharge certain assistant engineers employed at a pumping station, the assistant engineer who alone of all the assistant engineers is within the protection of the veteran provisions of the Civil Service Law is entitled to be
Civil Service Law (L. 1899, ch. 870), 8 21.
retained even though his retention will necessitate the discharge of some other assistant engineer who is not a veteran. Matter of Pratt v. Phelan, 67 App. Div. 349, 73 N. Y. Supp. 823.
Discharge of veteran during probationary period.— An honorably discharged soldier of the civil war appointed to a position in the civil service in a municipality for the probationary term of three months cannot be removed during the probationary period except upon charges and after a hearing. People ex rel. Hoeges v. Guilfoyle, 61 App. Div. 187, 70 N. Y. Supp. 442.
Abolishment of office; creation of new position.- An honorably diseharged soldier of the Union army in the civil war was notified by the commissioner of parks of the city of New York that his services as superintendent of small parks were no longer required as his office had been abolished. Two positions were thereafter created in the department of parks to be known as assistant superintendents of parks, whose duties included those formerly performed by the superintendent of small parks. In an action brought by the veteran to secure a reinstatement he alleged that his position was abolished in bad faith, and that the duties of the newly created positions were the same as or similar to those which he had performed. It was held that if the position was abolished in bad faith and not in the interests of economy, he was entitled to be restored; and if the position had been abolished in good faith and the duties of the positions created were similar to those of the office abolished, he was entitled to a transfer to one of such positions. The petition of the relator and the opposing affidavits presented an issue of fact, and the relator should have been granted an alternative writ of mandamus for the purpose of having such issues determined. Matter of Jones v. Wilcox, 80 App. Div. 167, 80 N. Y. Supp. 420.
A peremptory writ of mandamus should not be issued compelling the appointment of an officer removed by the abolishment of his office to a newly-created position, having similar duties, where it appears that the appointing officer has not attempted in any way to fill such newly-created position. Matter of Morrison v. Cantor, 75 App. Div. 480, 78 N. Y. Supp. 385, affirmed, 173 N. Y. 646; see, also, Matter of O'Toole v. Stewart, 75 App. Div. 497, 78 N. Y. Supp. 473.
'Where the position of messenger in the department of parks in the city of New York is abolished in good faith and in the interests of economy the person occupying such position may be summarily removed, provided no substantial duty of such position has been assigned to or is performed by any other employe of the department. Matter of Seide, 38 Misc. 663, 78 N. Y. Supp. 253.
Abolishment of office; notice to incumbent.- Where positions in a department of a municipal government are abolished in good faith and for economic reasons, and the incumbents of such positions are pended without pay, the head of the department is not obliged to give the persons affected notice of his intention to abolish their positions. People ex rel. Levenson v. Wells, 78 App. Div. 373, 79 N. Y. Supp. 728.
Revocation of assignment. - Where, after a civil service examination,