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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 221 Section 2070 of the Code of Civil Procedure provides that a peremptory writ of mandamus may be issued, in the first instance, where the applicant's right to the mandamus depends only upon questions of law, and the proper notice has been given. In every other case a peremptory writ cannot be issued until an alternative mandamus has been issued, served and the return day therefor has elapsed. Where, upon motion for a mandamus, opposing affidavits are read which are in conflict with the averments in the affidavits of the relator, and notwithstanding this the relator demands a peremptory writ, it is equivalent to a demurrer, and the question as to the right to the writ must be determined upon the assumption that the averments of the opposing affidavits are true. (People ex rel. v. Cromwell, 102 N.Y. 477;People v. R., W. O.R.R., 103 N.Y. 95; People ex rel.Lewis v. Brush, 146 N.Y. 60.)
The only allegations contained in the relator's affidavit which are to be taken as true are the allegations of fact that are undisputed and any allegation contained therein which is a mere conclusion of law should not be considered. (Knapp v. City ofBrooklyn, 97 N.Y. 520, 523.) It is a well-established rule of law that the power to appoint to an office *Page 224 or position, where the term or tenure is not defined by statute or otherwise, necessarily carries with it the power of removal. (People ex rel. v. Fire Commissioners, 73 N.Y. 437; Peopleex rel. v. Robb, 126 N.Y. 180.) As in this case there is no claim that the term or tenure of the office or position of superintendent of the Truant Home was defined by statute or otherwise, it follows that the common council possessed the authority to remove the relator, unless the statutes relating to firemen or honorably discharged soldiers and sailors prevented the relator's discharge.
Chapter 80, Laws of 1888, provides in substance that a keeper or assistant keeper, janitor or assistant janitor of any public building in the city of Brooklyn or the county of Kings, receiving a salary from the city or county treasury, who shall be an honorably discharged soldier or sailor of the late war of the Rebellion or who shall have been a member of the volunteer fire department of the city of Brooklyn at the time of the disbandment thereof, shall not be removed from such position except for good cause, shown after a hearing had, but shall hold such position for and during good behavior. Section 29, title 22, chapter 583 of the Laws of 1888, is to the same effect. Chapter 577, Laws of 1892, provides that no person holding a position by appointment in any city or county of this state, receiving a salary from such city or county, who is an honorably discharged soldier, having served during the war of the Rebellion, or who shall have served the time required by law in the volunteer fire department of any city or village in the state, or who shall have been a member thereof at the time of the disbandment of the volunteer department, shall be removed from such position except for cause shown after hearing had. Chapter 716, Laws of 1894, provides for preference of honorably discharged soldiers and sailors, in making appointments to public positions, and further provides that in all cases the person having the power of employment or appointment, unless the statute provides for a definite term, shall have power to remove soldiers and sailors so appointed *Page 225 only for incompetency and conduct inconsistent with the position held by the employee or appointee.
From this examination of the statutes it is manifest that the appellants had no right to remove the relator and appoint another to fill the position occupied by him except for good cause shown after a hearing had, and had no right to remove him unless the position he occupied was abolished in good faith and for sufficient reasons. While these statutes are positive in form, it is clearly not their intent to give to occupants of such positions a life tenure where upon grounds of economy or for other proper reasons the office or position is in good faith abolished. In People ex rel. Wardrop v. Adams (22 N.Y. St. Rep. 856), it was held that an honorably discharged veteran of the Union army might be removed for the reason that the position he occupied was abolished on economical grounds, and its duties might be attached to an existing office which was held by a person not a veteran, and that such a removal was not in violation of the statutes relating to veterans of the war of the Rebellion holding positions in the city of Brooklyn. (See, also,Phillips v. Mayor, etc., 88 N.Y. 245; Lethbridge v. Mayor,etc., 133 N.Y. 232, 237.)
Assuming, then, that the appellants had the right to abolish the position occupied by the relator upon economic grounds, it follows that if the relator was discharged solely upon those grounds, the peremptory writ of mandamus was improperly issued. It is contended by the appellants that the duties which were formerly performed by the relator are now discharged by Eugene Martyn, who was, at the time, an employee of the appellants; that the change was made for economic reasons, and because the Home was extravagantly managed; that economy in the management of its affairs has been the result of the change, and, therefore, as the removal was made in good faith and for proper reasons, that they had the right to discharge the relator.
If, as we have already seen, the affidavits read by the appellants were such as to put in issue the facts alleged in the affidavit of the relator, and such as to show that the relator was *Page 226 discharged in good faith and upon economical grounds, the court erred in awarding a peremptory writ. If the relator desired to dispute the facts contained in the answering affidavits and test their correctness, an alternative writ should have been issued, and the issues thus raised tried in the manner provided by statute. Hence, the real question is, whether, when the uncontradicted statements contained in the relator's affidavit and the statements in the answering affidavits are considered, the undisputed facts were sufficient to justify the court in holding, as a matter of law, that the relator was improperly discharged.
When we examine the affidavits we find that the relator, in his affidavit, makes a general statement to the effect that Eiseman was performing some of the duties formerly performed by him. This allegation is expressly denied. The relator also specifies what the duties performed by him were. He states that he made requisitions for supplies furnished under contracts by the city works department; that he received such supplies and certified to the department the correctness of the bills therefor; that he certified the monthly pay rolls; that he hired the employees, other than teachers, under the direction of the committee of the common council; that he was in general charge and custody of the Home and its inmates. The answering affidavits are to the effect that the only duties which were performed by the relator were making requisitions for supplies, certifying to the monthly pay rolls and hiring domestic servants, and that since his discharge those duties have been performed by Martyn. They expressly deny that the relator was in general charge and custody of the Home and its inmates, or that he was charged with the performance of any other duties than those last specified. The resolution appointing Eiseman gave him authority to appoint such laborers as might be necessary, while the relator was authorized to hire domestic servants, which duty has since been performed by Martyn. All the work falling within the duties of a janitor is alleged in the answering affidavits to have been performed by laborers and boys during the time *Page 227 the relator was superintendent or keeper. Thus it appears that practically all the services or duties which were rendered by or devolved upon the relator as superintendent of the Home were subsequently performed by Martyn, and that the duties assigned to Eiseman were not performed by the relator, but by laborers and boys employed at the Home.
This examination of the affidavits read upon the motion discloses that practically every essential allegation contained in the affidavit of the relator is denied so far as it relates to the nature and character of the work performed by him and that performed by Eiseman. Under these circumstances it is manifest that the Special Term had no authority to grant a peremptory writ of mandamus.
It will be observed that by the amended order a peremptory writ was to issue directing the appellants to permit the relator to perform the work and services which are now performed by Eiseman, to assign to the relator the duties discharged by Eiseman and to permit the former to collect the salary or compensation therefor. It is somewhat difficult to understand the theory upon which the court assumed the right to appoint the relator to discharge the duties of a janitor, which were not previously performed, or required to be performed, by him as superintendent of the Home. We have examined the papers contained in the record in vain to find that the relator made any claim that he should be appointed janitor. On the other hand, his affidavit discloses that in January, 1895, when the question of his removal was pending before the common council, he notified the appellants that he was a veteran of the late war and veteran fireman, and claimed that he could not be removed as superintendent without a hearing; and also that, on May 6th, while the resolution removing him and appointing Eiseman janitor was pending in the mayor's hands, and before its approval, he gave a similar notice to the mayor. In neither instance was there any suggestion that he was willing to assume or perform the duties which by that resolution were assigned to Eiseman. Under these circumstances, with no claim upon the part of the relator that he *Page 228 should be retained as janitor, we are unable to discover any authority which justified the court in directing the common council to appoint him as such in the place of Eiseman.
If it be claimed that the dismissal of the relator was not made in good faith, but for the purpose of evading the statute as to veteran soldiers and firemen, the answer is that the papers read upon the application for the order were not sufficient to justify the court in holding, as a matter of law, that such was the purpose of the appellants. That question could be determined only after a trial upon the return of an alternative writ.
We are of the opinion that the order should be reversed and the writ of mandamus dismissed, without costs.
All concur.
Ordered accordingly.