People ex rel. Stutzbach v. Coler , 68 N.Y.S. 738 ( 1901 )

McAdam, J.

Otto Stutzbach, a veteran of the War of the Eebellion, applies for a writ of peremptory mandamus requiring Bird S. Ooler, as comptroller of the city of Hew York, to reinstate the applicant in his position as warrant clerk in the office of the auditor of the finance department of said city and to pay the applicant the salary appertaining to such position for the month of January, 1901. The moving papers show that the applicant was appointed a warrant clerk in the said auditor’s office July 1, 1898, at the salary of $1,200 a year, and was assigned to duty in the borough of Bichmond; that on or about December 15, 1899, the applicant was transferred to the office of the said auditor in the borough of Manhattan; that while acting as a warrant clerk he was assigned to the duties of a private messenger to said auditor; that on January 12, 1901, he was discharged by the comptroller on account of lack of funds; that there are employed in the said office about sixteen other warrant clerks, some of whom perform messenger service and none of whom is a veteran or has served the term required by law in a volunteer fire department. And the applicant further alleges that at and prior to his appointment the comptroller had due notice of the fact that the applicant was a veteran of the Civil War. The respondent denies knowledge or information of the fact that the applicant was a veteran, states that an examination of the records of his department fails to disclose such fact, and claims that there is at present no statutory authority giving a veteran a preference in holding a position to which he has been appointed in the civil service. From the legislative mandates that no veteran shall be removed from his position or employment except for incompetency or misconduct shown after a hearing, upon due notice and stated charges, and that if in cities of the first class the position shall .become unnecessary or be abolished by reason of economy or otherwise the veteran shall not be discharged from the public service, but 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 (Laws of 1899, chap. 370, § 21), it would seem to be at the least a fair inference, if indeed it is not expressly provided, that a veteran is preferred to other employees in the public service in the retention of his position. As the respondent, however, denies that he had any knowledge or notice of the fact that the applicant was a veteran, an alternative writ must issue (People ex rel. McDonald v. Clausen, 50 App. Div. 286), unless the defendant will waive that point, in the event of which waiver a peremptory writ will issue.

Ordered accordingly.