People Ex Rel. Gleason v. . Scannell

*318 O’Brien, J. This proceeding originated in the relator’s petition for a peremptory mandamus requiring the defendant to restore him to his position as a member of the fire department of the city of New York. On the application for the writ some of the material facts stated in the relator’s petition were denied by the defendant and an alternative writ was issued to which the defendant made return. The issues thus presented by the petition, alternative writ and return were tried before the court and a jury on th,e 10th day of January, 1900, and the jury by direction of the court found a verdict for the relator. At the close of the trial both sides insisted that there was no question for the jury, and. both sides in effect requested a direction by the court. The court directed a verdict for the relator and the judgment was unanimously affirmed on appeal. If there was any dispute with respect to the facts, stated in the relator’s petition, which we cannot perceive, that dispute must be deemed to be settled in favor of the relator. The direction, having been requested by both sides, has the same effect as if the jury had found a verdict in relator’s favor after a submission of the case to them. (Adams v. Roscoe Lumber Co., 159 N. Y. 176 ; Westervelt v. Phelps, 171 N. Y. 212.) But of course the direction does not settle the law arising from the facts alleged by the relator. Whether upon these facts he was entitled to be restored to membership in the fire department is a question of law which this court can review. There is no case before us in the record except that. of the relator, and we propose to decide that case and no other. In the briefs of counsel on both sides there' is to be found considerable discussion with respect to other persons that it is said were appointed at or about the same time as the relator and removed under like circumstances. All we mean to say with respect to these parties is that their cases are not before us now and we decide nothing in regard to any case but the one presented by the record. The relator’s case, as we view it, seems to be a very plain and simple one without any serious obstacles in the way of *319 the relief which he demands. The undisputed facts upon which his claim is based are these: On the 17th day of November, 1897, the board of fire commissioners of Long Island City removed ten persons, who prior to that time had been a part of the force, and the removal was made on the ground and for the reason that these persons were not qualified inasmuch as they had not passed the civil service examination as required by law. This left ten vacant places in the force as it had previously existed. On the 24th day of November, 1897, the commissioners appointed to fill these vacancies ten other persons who had duly passed the civil service examinations and were qualified for the places. The relator was one of these persons, so that there cannot be any serious question with respect to the validity of the appointment. The power of appointment was conferred upon the commissioners by the city charter. They did not by that act increase the force or the expenses of the city, but merely kept it at the point where it was before. On the first day of January, 1898, the new charter of the city of New York went into' complete operation, and Long Island City was absorbed in the greater city. By section 722 of the new charter the relator was made a member of the fire department of the new city, in which position he continued to serve down to the 19th day of March, 1898, when he was removed by the defendant. The only ground for the removal is stated in a written notice served upon the relator by the defendant to the effect that he had been advised by the corporation counsel that the appointment of firemen in Long Island City made in and subsequent to November, 1897, was illegal, and that the relator was relieved from all further duty in the department and that his right to be considered a member of the fire department was no longer recognized. It will be seen that the entire controversy turns upon the validity of the relator’s appointment to the force in November, 1897. The power of appointment was given to the board that appointed the relator in general terms, subject to one limitation, and that was that the expenses of the department should not in any one *320 year exceed $40,000. It is not seriously contended that the appointment of the relator and the nine other persons to fill the vacancy caused by the removal' of an equal number who were not qualified to serve and were appointed in disregard of the regulations for the civil service, violated this limitation'. The most that is claimed is that other and subsequent appointments did, but that question is foreign to the present case. It is proper, however, to observe with respect to this limitation and its effect upon the power of appointment that it was no part of the relator’s case to show that the expense of the department was kept within the sum designated. The relator could make out his case by producing the written evidence of his appointment in the form of a resolution of the board. Whatever effect the limitation in regard to the expenses of the department contained in the charter had upon the validity of the relator’s appointment to the force by the hoard, it was matter of defense. (McNulty v. City of New York, 168 N. Y. 117.) The defendant has no finding in this case that the . limitation was exceeded. He did not ask to go to the jury upon that question, and the directed verdict has all the effect of a finding to the contrary. There was some proof given at the trial tending to show the expenses of the department down to the latter part of November of the year, hut no one would claim that it was conclusive, even if it was competent, and as the burden of furnishing such a finding as an answer to the application, if it was an answer, was upon the defendant, this court cannot now assume such a fact to be conclusively established upon the record, even if it could he held to be a complete answer to the application. (Milbank v. Jones, 127 N. Y. 370; Rowell v. Janvrin, 151 N. Y. 60; Brennan v. Mayor, etc., of N. Y., 62 N. Y. 365.) This case, when the most favorable view for the defendant is taken, may be summarized in this way : The relator is seeking to enforce a right founded upon a statute, namely, the right to retain his position until removed for cause and upon notice and a hearing. The defendant is seeking to defeat that right by a limitation in the statute in the nature of a *321 proviso. The rule of law in such cases is that the defendant must not only show that the proviso as matter of law defeats the right claimed, but that as matter of fact it is applicable to the relator, and so far as this depends upon an inquiry w'ith respect to facts dehors the statute these facts must in this court appear to be conclusively established by some affirmative finding. Whatever may be said with respect to the first condition, it is very clear that the last one is not present in the record before us, and, therefore, the defendant has failed to meet and answer the relator’s case. The power to appoint as many firemen as may be necessary is in the enacting clause of the statute and the provision that the expense shall not exceed $40,000 each year is in a subsequent clause in the nature of a proviso. The. enacting clause being general, followed by a subsequent clause to qualify or restrain its generality in the nature of a proviso, the restraining clause must be held to be matter of defense and the burden is upon the party who claims under it to show that his case comes within the words as well as the reason of the qualifications. (Rowell v. Janvrin, supra; United States v. Dickson, 15 Peters, 165; Ryan v. Carter, 93 U. S. 83; Spieres v. Parker, 1 T. R. 141; Potter’s Dwands on Stat. 118, 119.) On the record now before us it must, therefore, be held that the relator was legally appointed and improperly removed and so the order appealed from must be affirmed, with costs.