Section 2138 of the Code of Civil Procedure provides that this proceeding “ must be heard upon the writ and return and the papers upon which the writ was granted.” It will be noticed that the return does not deny that the rule of the department- required twenty-four hours’ notice of a hearing, or that the objections to the plan on file, of which the relator had a type-written copy made, were public records open to the inspection of the public, all that is said on that subject being that it was not the relator’s duty to furnish to the pub-*76lie copies “ except in the regular course of business ” — whatever that may mean. It would appear that it was during business hours, and it is not claimed that the objections were not matters with which the relator was connected, nor does the superintendent in his return furnish any copy of any rule of the department forbidding what the relator did. So that upon the petition and return it is made clearly to appear that the charge was to a degree ■ frivolous and entirely insufficient to justify the removal, because it narrows down simply to a charge that the relator caused to be made openly a type-written memorandum of the indorsement on a public record and caused the same to be placed upon his desk; an. act which the return itself does not show was a violation of any rule of the department, the statement being that it was “ not part of his (the relator’s) duties.” There is not a suggestion or intimation that the copy was to be used for any improper or corrupt purpose, but, on the contrary, it would appear that it was made for the purpose of being furnished to an architect who had the right, it being a public record, to see it and take a copy of it if he saw fit. In making the copy or causing it to be made, the relator merely saved the time of the architect who applied for it, who otherwise would have been obliged to make the copy himself.
Section 48 of the Consolidation. Act (Chap. 410, Laws of 1882), in effect at the time of the removal, provided that “ no regular clerk or head of a bureau shall be removed until hedías been informed of the cause of the proposed removal and 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 or board.” It is conceded that the relator was a regular clerk, and that he did not receive the notice as required by the rule of the department, but he was summoned and, after being asked and truthfully stating about the type-written copy which was then on his desk and had not been handed to anybody, his resigna- ■ tion was demanded, and that being refused he Was summarily dismissed. Here, therefore, we have neither notice of a hearing, nor a hearing, nor notice of a proposed removal. Unless, therefore, the position taken by the respondent is correct, that the relator could be discharged without any hearing, arbitrarily, then clearly the dismissal was wrongful.
*77The contention that the relator could be discharged without any hearing whatever is based upon section 3 of chapter 275 of the Laws of 1892, which provides as follows: “ Said superintended! shall have power to engage in behalf of such department buildings, and in his discretion to discharge, from time to time, such officers and employees thereof, subject to the provisions hereinafter stated, * * * and may make from time to time rules and regulations for their government.” It will be noticed that this section is not inconsistent with section 48 of the Consolidation Act, nor does it in any manner repeal or modify the provisions of that' section. As will appear, there were several grades of persons in the department, divided up and designated as heads of bureaux, officers, regular clerks, employees and inspectors, and it will be seen by reference to section 43 of chapter 275 of the Laws of 1892, that the power to arbitrarily remove inspectors was given, as it is by section 3 to remove officers and employees. The rights of regular clerks or heads of bureaux were, therefore, left to be governed and controlled by section 48 of the Consolidation Act. The relator being entitled, therefore, to notice of the cause of proposed removal and to an' opportunity of making an explanation, the action of the superintendent in removing him without according him his legal rights' and upon a charge that was frivolous and baseless, calls for a reversal of his action.
The action of the respondent should, therefore, be annulled, and the relator reinstated, with costs.
Van Bbünt, P. J., Rumsev, Ingbaham and McLaughlin, JJ., concurred.
Proceedings annulled and relator reinstated, with costs.