People Ex Rel. Kastor v. . Kearny

The relator stood first on the eligible list of the municipal service commission for appointment as senior clerk in the department of public buildings. This was in the classified service. The defendant appointed him senior clerk of the department, to take effect June 13, 1899, and the relator entered upon his duties. On June 17, 1899, the defendant discharged him, assigning no cause and giving him no hearing. He demanded and was refused reinstatement, and moved for a writ of mandamus at Special Term. The *Page 66 motion was denied. The Appellate Division reversed the order denying the motion, and awarded the writ for the reinstatement of the relator. At the time of his appointment chapter 370, Laws 1899 was in force — and so far as its provisions are applicable to the city of New York, they supersede the provisions of its charter inconsistent therewith. (People ex rel. Fleming v. Dalton,158 N.Y. 175.) Section 8 provides: "All appointments or employments in the classified service shall be for a probationary term, not exceeding the time fixed in the rules." The act provides for the making of rules, but none had been made. The Appellate Division assumed that the rules in force, made under section 124 of the charter, applied until superseded by new rules. Both parties concede this assumption to be correct under section 27 of the act. Under section 124 of the charter the municipal civil service commission was authorized to provide "for a period of probation before an appointment or employment is made permanent." The commission had provided by rule 35 that "all employment in positions under any of the schedules, except Schedule G, shall be provisional, and such provisional service shall continue six months except in Schedule C, when it shall be for one month, during which period the person so employed may atany time be peremptorily discharged from service." The relator's office was not in either Schedule G or C. The rule seems to limit the power of peremptory discharge to persons appointed under Schedule C. The Appellate Division held that the last clause of this rule was void as in excess of the power granted by section 124 of the charter. In this view we concur. "A probationary term" or "a period of probation" implies definite or stated length of duration, especially so when such term or period is to be provided in advance. It is not "any time" within a fixed length of duration, unmeasured by the rules, and measurable by the pleasure or will of the appointing power. Probation or probationary implies the purpose of the term or period, but not its length; the rules could fix its length, for so the statute provides, but *Page 67 could not make its length provisional in point of time, for that would be to unfix it or annex an unauthorized item. While the primary purpose of the law is to secure efficient service, yet the probationary appointee is thereby secured an experimental trial for the period prescribed by the law or the rules made in pursuance of the law, and he is not to be condemned pending the trial before the time, given him to show his fitness, has expired, except after an opportunity to explain under section 1543 of the charter. In People ex rel. Sweet v. Lyman (157 N.Y. 368) the appointee served out his probationary term, less one day, and the case was decided upon other grounds and does not apply. The case, then, is, that the relator was appointed for a probationary term of six months, and the provision of rule 35 providing for his peremptory discharge during his probationary term, without notice of charges or opportunity to be heard, was invalid, and, therefore, the relator's peremptory discharge under that provision of the rule was unlawful. The order should be affirmed, with costs.