People ex rel. Hoeges v. Guilfoyle

Hatch, J.: Relator, an honorably discharged soldier of the Civil war, was appointed a violation notice server in- the department of buildings of the city of New York at a salary of $160 per month, to take effect September 1, 1899. The position is in the classified service of the municipal civil service, and the appointment was made for a probationary term of three months, as provided by rule 35 of the municipal civil service rules; he was dismissed on or about the 15th day of Hovember, 1899, during the probationary period, for alleged incompetency, without notice and without opportunity to render an explanation or trial of any kind. Relator sent a written request to the commissioner that he be restored to his position and salary, on the 17th day of Hovember, 1900, a year after his dismissal. In his petition relator asks to be reinstated and for his salary since the time of his dismissal, claiming that, his removal was illegal. This relief was granted by the order of the Special Terra, from which order this appeal is taken. It is, undoubtedly, the rule that during the probationary period the relator could not be removed, except upon charges and opportunity given for a hearing. (People ex rel. Kastor v. Kearny, 164 N. Y. 64.) His removal was, therefore, illegal. He had no right, however, to any fixed term of retention in his employment beyond the probationary period, which expired within fifteen days after the unlawful removal. If reinstated, therefore, it could only be for such period and the only right which he could obtain would be his salary covering that time. For at the expiration of his term of probation his services might be dispensed with without trial or héaring, assuming that the person vested with the power to dispense with the service acted in' good faith in dismissing the relator at that time. (People ex rel. White v. Coler, 56 App. Div. 171.) The most, [189] therefore, to which the relator is presently entitled would be his restoration for the unexpired term of the probationary period. It is not necessary, however, that we now determine just what the status of the' relator would be if he were presently reinstated, as we think this order must be reversed on the ground of loches in making application for reinstatement. He was dismissed November 15, 1899, and took no steps whatever to secure his restoration until the 17th day of November, 1900, when he wrote a letter to the defendant requesting restoration to his position and payment of his salary. Hpon failure of the defendant to comply with such demand he commenced this proceeding on the 27th day of November, 1900, over a year after his removal. The excuse which is offered as an answer to this delay is entirely insufficient. Assuming that he might safely wait for a judicial construction of rule 35 and his rights thereunder, such construction was given by this court in March, 1900. (People ex rel. Kastor v. Kearny, 49 App. Div. 125.) By virtue of that decision the relator was notified of his rights in the premises, and if he might have safely waited until that time, it is evident that he would be required to move promptly for the protection of his rights or lose the same by delay. Nothing contained in People ex rel. Warschauer v. Dalton (52 App. Div. 371) is authority in excuse of relator’s loches. Therein decisions made by this court were overruled by the Court of Appeals. The relator had begun his proceeding for reinstatement when the latter decision was handed down by the Court of Appeals, showing that the petition upon which he relied was defective and the question presented was, whether he was called upon under a doubtful question of law to withdraw his appeal from the Court of Appeals, and institute a second proceeding, or whether he might prosecute the appeal in the Court of Appeals to a decision without being chargeable with loches in so doing. This court held that he might pursue the second course and that his second application should not be defeated for that reason. The discussion in that case shows that the law by reason of conflicting views was in a very embarrassing state, especially for litigants, and for that reason the* rule was somewhat relaxed. It is evident, however, that the court in that case went to the verge of the proper exercise of authority and that its doctrine cannot be extended or otherwise applied, except to [190] substantially similar facts. In the present case there was no such confusion of law.- The decision of this court was authoritative upon the question, and yet the relator delayed taking any step for nearly nine months thereafter, and for about a month after the affirmation of the doctrine in the Court of Appeals. This constitutes such loches as requires a denial of the application. The order should, therefore, be reversed, with ten dollars costs and disbursements,, and the application be denied, with ten dollars costs. Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred, Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.