Devins v. Sayer

Laughlin, J.: The appellant does not clearly show that any factory inspector retained in the service was not an honorably discharged soldier, sailor or marine, or a veteran volunteer fireman; but plainly his affidavit was intended to show this, and the appeal has been argued and should be decided on that assumption. The material facts may, I think, be deemed uncontroverted, for the only semblance of an issue of fact arises on the appellant’s bald statement that his position was not abolished owing to the reduction in the appropriation for the department, and that this was resorted to as a subterfuge, which is denied by the respondent, who shows that the appropriation was insufficient for the retention of all of the factory inspectors. Section 18 of the Labor Law of 1921, as added by chapter 50 of the Laws of 1921, provided that the Commissioner might transfer officers or employees from their positions to other positions in the department, “ or abolish or consolidate such positions,” and might “ remove from office any officer or employee in the department; ” but the Legislature at the same session by chapter 642 amended the section to read as follows: “ The Commissioner, notwithstanding the provisions of any other general or special law, saving and excepting [673] the provisions of section twenty-two of the Civil Service Law, may transfer officers or employees from their positions to other positions in the department, or abolish or consolidate such positions and may remove any officer or employee in the department.” In the above quotation I have italicised the provisions added by the amendment. Counsel for respondent contends that the amendment is to be construed strictly, and that the exception is confined to the provisions of section 22 of the Civil Service Law (as amd. by Laws of 1910, chap. 264, and Laws of 1920, chap. 833), and that, therefore, the appellant’s rights have not been disregarded, for section 22, in so far as it has any bearing on the point now under discussion, merely protected him against removal except for incompetency or misconduct shown after a hearing on due notice and upon stated charges, while the position remained in existence, and where, as here, the position became unnecessary or was abolished for reasons of economy or otherwise, it only protected him from discharge, provided there was a vacancy in a position he was fitted to fill, to which he could be transferred and receive the same compensation. Although in terms the statute forbids the discharge from the service of an honorably-discharged soldier, where the position becomes unnecessary or is abolished for reasons of economy or otherwise, and requires that he 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,” and it is made the duty of all persons clothed with power of appointment to make such transfer effective, it has been authoritatively held that the honorably-discharged soldier, whose position has been abolished lawfully, is not entitled to be so transferred unless there is a vacancy to which he can be appointed. (Matter of Breckenridge, 160 N. Y. 103; Matter of Edkins v. Wotherspoon, 173 App. Div. 330; Matter of Powers v. Dahl, Id. 501, dissenting opinion of Cochrane, J., on which the decision was reversed, 219 N. Y. 578.) But if there had been a vacancy in the position of factory inspector, respondent would have had no right to terminate the services of the appellant, and it would have been his duty, expressly enjoined by section 22, to transfer appellant thereto. The number of these positions existing at the time is not shown by the record, but it is to be inferred that there were a great many precisely similar positions. It is perfectly clear that the Legislature intended, at least, to preserve all of the appellant’s rights as an honorably-discharged soldier accorded to him by the provisions of section 22 of the Civil Service Law. Although the statute does not in express terms give honorably-discharged [674] soldiers a preference with respect to retention, where positions are abolished, it is I think plainly a violation of his implied rights conferred by the statute to single him out and abolish his position, which is precisely the same as that of many others, and to retain some who are not classified with him concerning their rights to be transferred to other positions, and dismiss him; and, if that were allowed, his statutory protection against removal without charges and a hearing, and against being discharged, and his statutory rights to be so transferred could readily be circumvented. I think the Legislature did not intend thus indirectly to authorize the respondent to review the fitness and competency of the appellant as compared to the other employees holding like positions, and on the theory of his unfitness or incompetency as compared to the others, to authorize the abolition of his position, while others not so protected against discharge and not entitled to be so transferred were retained; and that; therefore, there was no authority to abolish his position and discharge him, until after the positions of all others not so protected against being discharged and not so entitled to be transferred, were abolished. (Matter of Stutzbach v. Coler, 168 N. Y. 416; Matter of Powers v. Dahl, dissenting opinion of Cochrane, J., 173 App. Div. 505, on which the decision was reversed, 219 N. Y. 578.) It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Dowling, Page, Merrell and Greeneaum, JJ., concur. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Settle order on notice.