Matter of Shepard v. . Oakley

Werner, J. In September, 1904, when the last reduction was made in "the petitioner’s salary, as sét' forth in the fore *343 going statement of facts, the municipal civil service rules in force in the city of New York provided that certain offices and positions, including the one held by the petitioner, “ shall be divided into grades based upon the relative character of the duties performed and the rates of annual compensation.” (Rule 37.) In the absence of specific information as to the character of the duties actually performed by the petitioner through the various'mntations of his career from 1899 to 1904, it may fairly be assumed that the reduction of his salary was, in legal effect, a" removal from the higher grade and salary to a lower grade and. salary. (People ex rel. Callahan v. Board of Education, 174 N. Y. 169.) If this was the legal effect of the change imposed upon the petitioner, then it was the legal duty of the respondent to have given the petitioner a hearing and an opportunity to' explain before he was removed: (Charter Greater New York, sec. 1548.) Counsel for the respondent admits that this would" be the effect of the reduction in the petitioner’s salary alluded to, and that the provisions of section 1543 would apply, if the alleged promotions asserted by the petitioner had been legally and properly made. He challenges the validity of these so-called promotions on the ground that they were made in violation of the civil service rules and statutes which provided, in substance, that appointments and promotions in the civil service of the city of New York shall be made according to merit and fitness, to be ascertained, so far as practicable, by examinations which, so far as practicable, shall be competitive (Rule 1), and that promotion from á lower to a higher grade shall "be on the basis of "ascertained merit and seniority of service and examination. (Rule 36). The petitioner’s answer to this challenge is, that in 1899 he duly passed a competitive civil service examination for the position of assistant in the department of finance of the city of New York, and had been duly appointed to that position at a salary of $12.00 per diem, which was equivalent in grade to a position commanding a salary of $3,648 a year ; that since this original appointment he had remained in. the' civil service of the city, and during all *344 the time covered by the successive increases and reductions in his salary referred to, the civil service rules provided that “ any person in the competitive service, who shall have passed an examination either for appointment or promotion, covering in its scope a higher grade or compensation than that of the position he now holds, shall, if not otherwise disqualified, be eligible for promotion or advancement to such higher grade or compensation without further examination under this rule.” (Bule 15, sub. 12.) If the petitioner did in fact pass an examination in 1899 for a position óf a higher grade or salary than that of the $2,700 place, to which he claims to have been appointed in July, 1903, it is obvious that the rule just quoted entitled him to promotion to the latter position without further examination, unless his appointment thereto was in violation of some other rule or statute. As to this feature of the case the respondent contends that, notwithstanding the petitioner’s compliance with the requirements of the Civil Service Law and rules, the proper municipal authorities had never authorized the payment to him of either of said salaries of $1,950 or $2,700 per annum. The intermediate increase of salary to $1,950 per. annum need not be discussed, because the petitioner’s alleged grievance is that he was removed from the position which carried a salary of $2,700. Beferring to that removal the answering affidavit of the petitioner sets forth that on May 22nd, 1903, the board of estimate and apportionment recommended to the board of aldermen that the salary of one clerical position in the water supply department' be fixed at $2,700, and that the board of aldermen adopted this recommendation by a resolution approved by the mayor July 20th,-1903, which was two days before the increase of petitioner’s salary to $2,700. Thus' the situation, as presented by the conflicting averments of the petitioner and the respondent respectively, seems . to be-that when the petitioner' was appointed to' the $2,700 position-from which he "claims to have been illegally reduced, there wás a clerical position 'in the' water" supply department *345 commanding a "salary of $2,700 a year to which he claims to have been eligible by. reason of his previous successful examination for a position of a higher grade; while on the other hand it is claimed that the petitioner’s salary has never been legally increased above $1,500 since his appointment to the position of law clerk in the finance department in April, 1902. It is true that the averments of the respondent’s affidavits in this behalf are upon information and belief. Under ordinary circumstances they would not be regarded as sufficient to raise' an issue of fact. (People ex rel. Kelly v. Common Council of Brooklyn, 77 N. Y. 503, 510; People ex rel. Frost v. N. Y. C. & H. R. R. R. Co., 168 id. 187.) But a mere glance at the record will serve to show that the original petition was scant, if not reticent, and that the answering and replying affidavits are so informal in their averments as to render it doubtful whether there are any well-defined issues or not. Under these circumstances it is obvious that while the petitioner did not make out such a clear case of legal right as to entitle him to a peremptory writ, his petition should not have been dismissed, because he had asked for an alternative writ, if his prayer for a peremptory writ were denied. It seems to us that his prayer for the alternative writ should have been granted. As we have said, it is rather difficult to formulate with precision the issue or issues of fact presented by the record as it now stands^ The petitioner should be allowed to show, if he can, that he was in fact legally appointed to the clerkship in the water supply department to which there was attached a yearly salary of $2,700. Since it does not clearly appear from the record whether there was a vacancy in any such position at the time of petitioner’s appointment it may be that the facts underlying the respondent’s denials will prove an insuperable obstacle to petitioner’s efforts in tliat direction. There are also conflicting averments of other circumstances which suggest rather than define still further possible issues. For these reasons we think the court should have granted an alternative writ, for this was a-discretionary po'wér which it could have exercised even in a case where a *346 peremptory writ might have been issued. (People ex rel. Slavin v. Wendell, 71 N. Y. 171.) Upon the hearing pursuant to an alternative writ the facts can be fully ascertained. The order appealed from should be reversed and proceedings remitted to Supreme Court with directions to issue an alternative writ of mandamus herein, with costs to abide the event. Cullen, Ch. J., Bartlett and Vann, JJ., concur ; Gray, J., absent; O’Brien and Haight, JJ., not voting. Order reversed, etc.