In re Application of Stutzbach

McLaughlin, J. (dissenting):

Certain material allegations set out in the moving papers were denied, and this in and of itself was a sufficient ground for denying the application. (People ex rel. Corrigan v. Mayor, 149 N. Y. 215; Matter of Haebler v. New York Produce Exchange, Id. 414.) For instance, the comptroller denied that he knew, at the time the relator was dismissed, that he was a veteran of the Union army, and in connection with such denial alleged that he had no knowledge of that fact, nor had his attention been called to it by the relator or by any one else. He also alleged that, at the time the relator was dismissed, •“ it was found absolutely necessary to reduce the pay rolls of the Finance Department over $30,000. *228That the only way this could be accomplished was by dismissing certain men, and rigid investigation was made through all the different bureaus in the Finance Department, and * * * fourteen employees in the Finance Department were notified that because of insufficiency of appropriation their services would no longer be required. . The relator * * * was one of these fourteen men. * * * That more dismissals will have to be made to meet the reduction in the annual appropriation. There are no vacant posi-. tions to which the relator could be transferred in the Department of which the deponent is the head.”

In view of the denials contained in the opposing papers, coupled with the affirmative allegations that the dismissal of the relator was made necessary by reason of insufficient appropriation, and that there were no vacant positions to which the relator could be transferred, I do not see how the court could direct the reinstatement of the relator to the position formerly held by him by a peremptory writ of mandamus. The fact that the respondent did not know, at the time of- the dismissal, that the relator was a veteran must.be taken as true (Matter of Haebler, supra), and, therefore, the act of the respondent in removing him was not illegal. (People ex rel. O’Brien v. Cruger, 12 App. Div. 536 ; People ex rel. McDonald v. Clausen, 50 id. 286.) This seems to be conceded in the prevailing opinion; but it is claimed that when knowledge of the fact that the relator is a veteran was brought home to the comptroller, accompanied with a demand for reinstatement, the relator thereupon became entitled to be reinstated ; in other words, an act of the comptroller, legal in the first, instance; was made illegal by information thereafter acquired by him. This reasoning to me seems fallacious. The legal rights of the parties must be determined as of the time when the relator was dismissed, and nothing which either of them could thereafter do could make illegal an act theretofore legal. If it be true that the relator had the right to insist upon a preference in employment, he lost that right by failing to give the comptroller the information prior to his dismissal, and he could not,, after he had been dismissed, regain what he had lost by doing what would have prevented the loss, had he seen fit to act before -the comptroller did.

But I am of the opinion even though the comptroller had knowl*229edge of the fact that the relator was a veteran at the time he dismissed him, that this did not prevent the dismissal. Under the statute conforming to the constitutional provision on the subject, a veteran has a preference in appointment and in promotion, but not in employment, and to give the statute such a construction is toread into it something which is not therein contained. It must be borne in mind that, except for the statute, a veteran has no preference over .any .other person, either in appointment or promotion, and when resort is had to it, it must be made to appear that the applicant comes clearly within its provisions. Under chapter 821 of the Laws of 1896 a veteran had preference not only in "appointment and promotion, but also in “employment,” and it was held under this statute that, wherever there were two men employed in a public department, one a veteran and the other not, and the services of only one were required, that it became the duty of the superior officer who had the power to discharge, to retain the veteran and dismiss the other. (Matter of McCloskey v. Willis, 15 App. Div. 594.) But this act was repealed by chapter-370. of the Laws of 1899, and the preference theretofore provided as to employment was stricken out, manifesting a legislative intent at least, that there should be no preference-in employment after an appointment had once been made. This statute conforms in terms, to section 9, article 5 of the Constitution.

Section 20 of chapter 370 of the Laws of 1899 provides, and this is the only provision of the statute which gives a preference, that veterans “ 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,” and that the employment or retention in the position to which the appointment had been made might be terminated, is perfectly evident from the following section (§ 21), which provides that, in cities of the first class, if the position occupied by a veteran “ shall become unnecessary or be abolished for reasons of economy or otherwise,” the veteran 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.”

Here the position filled by the relator had become unnecessary and was abolished for reasons of' economy, and if the comptroller had been notified of the fact of the relator’s being a veteran he *230would have been compelled to transfer him to such other position, had such position existed, but it did not give the relator the right to insist that other persons employed in that department should be discharged in order that he might be retained. Whatever may be our feeling in reference to the subject-matter involved, or how much we may desire to give a preference to veterans, it is our duty to construe the statute as we find it, according to' its legislative intent, and when this statute is thus construed I do not see how it can be claimed that the relator was entitled to be reinstated. The fact is not disputed that the comptroller, for reasons of economy and because of an insufficient appropriation, found, it necessary to discharge a large number of persons employéd in the audit department. •He discharged fourteen; the relator, being the least efficient of any, was one of 'them. But it is said that his act was illegal, because he did not make a place for the relator by discharging some other person employed in that department. This he was not bound to do. (Matter of Breckenridge, 160 N. Y. 103.) In the Breckenridge icase the same contention was made and repudiated. Judge Gbay, delivering the opinion of the court, referring to this contention, ¡said: “ Indeed, his counsel puts his case for him very frankly when he says ‘the respondent is bound to make a place for the appellant, -even if it should be necessary to dismiss from the service others who are not protected under the veteran acts.’ That' is a view which I think we should not take of this act. I do not think we should impute to the legislature the absurdity of intending to saddle •an unnecessary officeholder upon the city; or the injustice of intending that some faithful and possibly more efficient officer who happens not to be a veteran must be discharged to make room for the incumbent. * * * ”

For the foregoing reasons I am of the op^mon that the application for a peremptory writ of mandamus was properly denied.

O’Bbieh, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.