People ex rel. Pettit v. Kane , 70 N.Y.S. 982 ( 1901 )

TRUAX, J.

Section 1543 of the charter gives to the head of a department the power to remove all clerks, officers, employés, and subordinates in his department, except as otherwise specially provided, without reference to the tenure of office of any such appointee, except that no regular clerk or head of a bureau shall be removed until he has been allowed an opportunity of making an explanation. The relator herein is not a regular clerk or head of a bureau. He is simply an employé. Rule 42 of the civil service rules and regulations cannot repeal a statute. So far as it undertakes to repeal a statute it is of no force and effect (People v. Henry, 47 App. Div. 133, 62 N. Y. Supp. 102), and so the federal courts have held in reference to a like rule of the United States civil commission. See Carr v. Gordon (C. C.) 82 Fed. 373, and Flemming v. Stahl (C. C.) 83 Fed. 940.

Motion denied, with costs. Settle order on notice.