
    The People of the State of New York ex rel. Maxwell Kaufman, Respondent, v. The Board of Education of the City of New York, Appellant.
    First Department,
    February 5, 1915.
    Civil service — city of Mew York — authority of board of education to discharge employees in a designated class and transfer their duties to others — abolition of unnecessary positions.
    The board of education of the city of New York may, when work is slack," decrease its force by discharging some of a specially designated class and transfer to others the duty of performing the work which was formerly done by the persons discharged.
    Where the discharge of an employee by the board of education of the city of New York is justified, the question of malice or bad faith on the part of his superiors is immaterial.
    The board of education of the city of New York has power to abolish unnecessary positions.
    Appeal by the defendant, The Board of Education of the City of New York, from part of an order of the Supreme Court; made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of June, 1911, granting an alternative writ of mandamus.
    
      
      Charles McIntyre, for the appellant.
    
      John T. Loew, for the respondent.
   Hotchkiss, J.:

The petitioner was appointed to the position of mechanical draughtsman, sanitary, in 1913. On January 12, 1914, the committee on buildings on account of lack of work dispensed with his services as of February first, thereafter, which action was subsequently ratified by the board. The petitioner was attached to the building bureau of the department, the work of which requires the services of architectural draughtsmen and of sanitary mechanical draughtsmen; the former draw the general plans, and the latter the plans pertaining to piping and sanitary construction. After his discharge, no one was appointed in relator’s place, but his work was assigned to architectural draughtsmen, and the relator was restored or is entitled to be restored to the civil service list.

The gist of relator’s claim is that inasmuch as there was some work for him to do and an appropriation with which to pay him, he should have been retained, and that the city had no right to discharge him and at the same time assign his work to others. In People ex rel. Horvay v. Board of Education (164 App. Div. 930) we held a relator properly dismissed because it appeared that there was no work for him to do. It is, therefore, not on all fours with the present. The question now presented is whether, when work is slack, the board of education may decrease its working force by discharging some of a specially designated class and transfer to others the duty to perform such work as there is to be done of the character theretofore performed by those in the discharged class.

The board of education has power to abolish unnecessary positions. (People ex rel. Connolly v. Board of Education, 114 App. Div. 1; affd., 187 N. Y. 535.) In People ex rel. Vineing v. Hayes (135 App. Div. 19) we held that when the city officials can decrease the number of employees by distributing their work among others of the force it is their duty so to do. It would be incredible should it be otherwise. Such being the case, and the relator’s discharge being justified by the facts, the question of malice or bad faith on the part of any of the relator’s superiors is immaterial. (People ex rel. Vineing v. Hayes, supra, 22.) We place no weight whatever on the argument that the board had no power to act through its regular committee. In the light of the legislation, and the rules of the board pertaining to the subject, the question is too clear for argument. Furthermore, the record shows that the relator was appointed in pursuance of the recommendation of a committee of the board, and thereafter confirmed by the board. If the board had no power to delegate the committee to investigate and report as to the propriety of the relator’s discharge, it would seem to follow that his appointment was illegal, in which case he ought not to be heard to argue that he was illegally removed from a position to which he has no legal claim.

The order, so far as appealed from, .is, therefore, reversed, with ten dollars costs and • disbursements, and the motion denied, with fifty dollars costs.

Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs.  