
    Mary E. Craigie, Respondent, v. The City of New York, Appellant.
    Second Department,
    July 24, 1906.
    Civil service in city of New York — when question as to proper classification of position cannot be raised collaterally — unlawful removal of librarian.
    A librarian in the former public library of Brooklyn, established under chapter 441 of the Laws of 1892, as amended by chapter 497 of the Laws of 1897, who was placed in the classified service subject to examination, is entitled to protection from removal without a hearing uuder section 1543 of the charter of Greater New York, although the directors of the library exceeded their authority in placing the position in the classified list.
    In any event the question as to the librarian’s right to the protection of said section cannot he raised collaterally in an action for salary after a removal alleged to have been illegal.
    When the hearing on the plaintiff’s removal was held'against protest before a committee of the hoard of directors instead of before the hoard itself, which alone had the power of removal, whereby the plaintiff was misled and prevented from appearing, the removal was illegal.
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plain tiff, entered in the office of the clerk of the cqrnity of Kings on the 6th. day of Decernher, 1905, upon the decision of the court rendered after a trial at tne Kings County Trial Term, a jury having been waived.
    
      James D. Bell [P. E. Callahan and John J. Delany with him on the brief], for the appellant.
    
      Alexander S. Bacon, for the respondent.
   Woodward, J.:

In 1892 the Legislature of this State enacted a law entitled “An act to authorize the city of Brooklyn to establish and maintain a public library and reading-room in said city, and to provide for the payment therefor and for the maintenance thereof.” This act was amended by chapter 497 of the Laws of 1897 and chapter 433 of the Laws of 1898, and it was provided by section 4, as thus amended, that whenever the common council, by a resolution, determined to establish and maintain such free library under the provisions of the act, the mayor should appoint a board of directors consisting of twenty-one members, besides certain ex oficio members, and this board, among other things, was, by section 5, as amended in 1897, to have power to appoint a librarian and necessary assistants and other employees, and to fix their compensations, and to “ have power to remove such appointees.” It was clearly the intent of the Legislature to permit the establishing and maintaining of a public library as a municipal institution, and acting .under this authority the public officials of the city of Brooklyn did establish such an institution, and the plaintiff, in this action was duly appointed an assistant librarian at a salary of $1,500 per year, and this salary was regularly paid to her until the 1st of November, 1902, and on the nineteenth day of November she was removed from her position. While the plaintiff was seeking to enforce her rights through another channel, the Brooklyn Public Library, by act of the Legislature (Laws of 1902, chap. 606, § 6), ceased to exist, and its employees ceased to have any relations with the city. The plaintiff was thus forced to resort to an action at law to recover her salary during the time that she was out of the service, and the question here presented is her right to recover, after having been removed by the board of directors.

It is not disputed that the plaintiff was enrolled in the classified civil service of the city, by reason of a request of the board of directors of the library for such enrollment of assistants, but the argument is advanced that there was no authority for such enrollment, and that the plaintiff could gain no rights under such enrollment. We are of opinion, however, that the city is hardly in a position to urge this as against the plaintiff who was “ holding a position in the classified municipal civil service subject to competitive examination ” (Greater N. Y. Charter [Laws of 1901, chap. 466], § 1543) under regulations prescribed by the city. The section cited provides that “ no regular clerk or head of a bureau or person holding a position in the classified municipal civil service, subject to competitive examination," shall be removed until he has been allowed an opportunity of making an explanation,” and both the letter and the spirit of the law demand that where a person is holding a position under the classified civil service, subject to examination, he shall be entitled to the protection which this provision was intended to give, even though the city may have exceeded its authority in placing the position under such rules and regulations. At least the presumption is that the public officials have discharged their duties, and it is hardly fair ' that persons who have been subjected to such regulations and have acquired positions under them, shall be obliged to affirmatively show that the city has kept within its powers. In other words, the question ought not to be inquired into collaterally as a means of defeating the rights of the plaintiff. We are of opinion, however, that the plaintiff was an employee of the city and that as such she was within the purview of the law in reference to civil appointments, and is fully protected by section 1543 of the charter.

A body known as the committee of administration of the board of directors of the Brooklyn Public Library served some charges upon the plaintiff, who appeared before such committee and protested against any hearing or trial before such committee, claiming the right to be heard by the board of directors, who were alone authorized to remove her. This protest was disregarded, the committee reported to the board of directors, the plaintiff was unquestionably misled and prevented from appearing in her own behalf before such board, and without any consideration of the report the board of directors immediately adopted a resolution of removal. There is no pretense that this committee ever had this matter referred to them or that the board of directors had ever adopted any by-laws authorizing such committee to act in cases of this character. The whole proceeding appears to have been conducted in disregard of the plaintiff’s rights under the statute. We conclude, therefore, that the resolution of removal was a nullity, and that the recovery which has been granted the plaintiff is in accord with the law of this. State.

The judgment appealed from should be affirmed, with costs.

Jenks, Hooker, G-aynor and Miller, JJ., concurred.

Judgment affirmed, with costs. 
      
      See Laws of 1892, chap. 441—[Rep.
     