
    The People of the State of New York ex rel. Robert R. Crowell, Relator, v. Maurice E. Connolly, as President of the Borough of Queens, Respondent.
    Second Department,
    April 17, 1914.
    Municipal corporations — city of New York— certiorari — dismissal of assistant engineer for alleged misconduct — proof not justifying dismissal— charter, section 1536, construed.
    Certiorari to review the action of a borough president in' the city of New York dismissing from office an assistant engineer of the topographical bureau. The relator was removed from office for alleged misconduct. Evidence examined, and held, that the charges were not sustained and that the relator should be reinstated.
    As section 1536 of the charter of Greater New York provides that upon consolidation employees in different boroughs shall be assigned as nearly as may be to perform the same services under the new city officers, a person who had acted as an inspector and engineer on the local sewer system of the village of Jamaica prior to the consolidation is within the terms of said section. His rights were not affected by the repeal of the General Sewer Law.
    On certiorari brought to review the aforesaid determination of the borough president, he cannot attack the grading and rank given to the relator by the civil service commission.
    Certiorari issued out of the Supreme Court and attested on the 20th day of October, 1913, directed to Maurice E. Connolly, as president of the borough of Queens of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in. dismissing the relator from his office of assistant engineer of the topographical bureau of the borough of Queens.
    
      Edward M. Grout [Paul Grout and F. Sidney Williams with him on the brief], for the relator.
    
      William E. C. Mayer [Terence Farley, Elliot S. Benedict and Frank L. Polk with him on the brief], for the respondent.
   Putnam, J.:

The relator, in January, 1900, was appointed assistant engineer in the department of bridges, and as such had charge of the triangulation for the Queensboro and Manhattan bridges, also of other important surveys. In 1903 he was promoted to the topographical bureau of Queens borough, and so continued until the proceedings for his removal hereafter mentioned-With the return to the writ appears a report by Mr. Fosdick, commissioner of accounts, to the mayor, dated August, 1910, in which were certain criticisms of the topographical bureau of Queens borough. This report was followed by charges presented against the relator by Borough President G-resser, before whom taking of testimony began August 12, 1910. In the following November President G-resser dismissed all the charges except that numbered 5th, which accused Mr. Crowell of devoting most of his time to the bureau of highways — which apparently was deemed unimportant, as Mr. G-resser reinstated relator in his office.

In October, 1911, after respondent was in office, Mr. Hilty, chief examiner in the commission of accounts, informed the new borough president “ that the Commissioner of Accounts thought that the charges against the said Robert R. Crowell, tried before former Borough President G-resser, had been sustained, and in spite of the dismissal of them by said Borough President, that the said Robert R. Crowell ought not to be permitted to remain in charge of the Topographical Bureau of the Borough of Queens.” On March 5,1912, Mr. Hilty presented a further report, adverse to the relator, in which he set forth charges of inefficiency and questioned the relator’s qualifications.

Respondent, in July, 1912, filed the charges now under review (sixteen in number), to most of which the relator urged in bar the prior dismissal by President Gfresser, and maintained that those charges which had been thus adjudicated were not the subject of a second inquiry. This plea was overruled. Taking testimony and other proceedings ensued until, in July, 1913, a determination was made against relator. He was found guilty of charges numbered 10, 11, 12 and 15, and in part as to charges 1 and 7 — and acquitted of charges numbered 2, 4, 8, 9, 13, 14 and 16. Certain charges numbered 3, 5 and 6 were ignored in the findings. The relator was thereupon dismissed from office.

The charges not sustained need not now be considered, except to note that they were among those which came from the commission of accounts.

While it has not been directly held that the rule of res adjudícala precludes any reinvestigation of such, charges (See Matter of Greenebaum v. Bingham, 201 N. Y. 343, and Matter of Hathaway v. Kline, 159 App. Div. 488), the court can well treat such rejected charges and accusations as stale, a consideration which affects the weight and effect to be given them in determining if there was sufficient ground for the relator’s dismissal. (People ex rel. Dwyer v. Hogan, 101 App. Div. 216.)

We now take up the four charges found by defendant which relate to acts of alleged misconduct.

The 7th charge, so far as sustained, was for approving a bill against the city by the S. H. McLaughlin Company for" preparing certain benefit maps of Harris avenue which “did not comply with the original order.” These maps were for street openings. The issue was whether such a set of maps, supplied to the corporation counsel, should be in triplicate or in sets of four. The original order for these maps was never produced. All efforts to obtain it failed. It then appeared that it was the borough president himself who employed the surveyor to make the necessary maps, so that relator had no part in ordering them; that his assistant, one Johnson, had approved this bill only as to dimensions of the property mapped; his approval in a qualified form was because the bill had been rendered for sets of four maps instead of three. When this hill came up for payment separate opinions were obtained from three assistants to the corporation counsel, as well as from examiners, chief of division and an engineer in the finance department. These opinions having held the charge proper the bill was eventually paid. Mr. Clark, assistant corporation counsel, testified that when he passed on the bill it had not been approved by the relator. The charge as made for the maps actually furnished and used is supported by People ex rel. Crane v. Ahearn (125 App. Div. 795). This specification was, therefore, unfounded in all respects.

The 10th specification was because Mr. Crowell discarded a so-called “study map” of the unmapped parts of the borough without examining as to its use or adaptability. This was a large map, intended to embrace the entire borough, but not based throughout on actual surveys, so that its elevations (on which street improvements would depend) were in places wrong by as much as 40 feet, and its linear dimensions out in points by 1,000 feet. No use had ever been made of this cartographic vagary. To discard it would seem a plain duty in any bureau that sought accurate delineation of street lines or profiles.

Specification No. 11 was in regard to resurfacing Hoffman boulevard. Its original roadway, being subject to constant heavy traffic, proved unable to stand up and endure the great wear over that thoroughfare. In 1909 a repair contract had been made to put on the old roadway a new four-inch surface, the old stone work to be broken up or scarified before the new stone should be laid. There were, however, great inequalities where the old pavement had worn down in irregular holes, so as to leave only the stone of the bottom tier. The fault alleged against Mr. Crowell was that in such deeper spots he directed that the bottom stratum need not be dislodged, as it would have to be rolled back and replaced. The contract provided that the engineer should direct the loosening of the stone. Whether it was best to have this foundation stone broken up and then put back is a matter of engineering experience, where the practice varies according to local conditions. If the relator erred, it was an error of judgment, which did not necessarily show incompetency. But the expert testimony does not show that his course was a wrong one in the situations presented. Hoffman boulevard was originally built on insufficient foundations. The appropriation to repair it was inadequate. The results should not be laid to relator’s charge.

The 12th specification was for the purchase of a pillar theodolite, which was retained in relator’s possession. This instrument could not be bought ready made. In 1907, when it was ordered, the topographical bureau naturally expected to make all the triangulations. Later many of these determinations were conducted by the United States Coast and Geodetic Survey, from the government system of levels and bench marks. In 1911, when the bureau was called on to connect the street system with the wider triangulated points so determined, this theodolite proved efficient, and vindicated the foresight which had ordered it. As a precaution, this delicate instrument had been kept in relator’s house for four years, as it was naturally feared that, being an attractive novelty to the junior surveyors, they might take it out and submit it to incautious experiments. The four assistant engineers, however, could always use it when required.

The 15th specification was in charging the cost of certain damage assessment maps to corporate stock funds, instead of making up the cost from the time of the bureau employees, so as to charge these items upon the property owners. This system, obviously liable to great abuses, was not then in vogue. All of the borough employees concerned on these maps were also, on the same days, doing the required general bureau work, so that a charge for the time of making such maps, unless the hours of labor were scrupulously divided, might become an injustice to the property owners. Furthermore, the testimony was that neither the borough president nor any other official had directed the relator to keep separate account of the time of draftsmen while engaged on these maps, but instead, that the order had been that this expense should come out of the regular funds.

This summary includes all findings of misconduct against Mr. Crowell. It shows how slight and ill founded such charges proved to be when subjected to the test of legal evidence.

The charge numbered first was as to the relator’s qualifications. It was that Mr. Crowell had not properly qualified himself by civil service examination, or in technical education and training, to be assistant engineer in the topographical bureau. This was not new, as it restated the ninth Gresser charge, namely: “ That you are incompetent, in that you lack the proper technical education, training and ability to successfully perform the duties as Engineer in Charge of the Topographical Bureau, Borough of Queens.”

At the close of the evidence in support of the charges before this defendant, the corporation counsel conducting the prosecution announced that he did not propose to question Mr. Crowell’s fitness for the Bureau, for the position which he held in respect to technical education and training.” This withdrawal left only relator’s status under the Civil Service Law, and his place on the eligible list.

So the contention for relator’s removal came to this: Charges of misconduct may be made and tried, but if not well founded, still the relator may be summarily removed, because not under that protection which the Civil Service Law (Consol. Laws, chap. 7 [Laws of 1909, chap. 15], § 22, as amd. by Laws of 1910, chap. 264) gives to a veteran, although the record shows the removed official was originally duly certified as eligible for appointment by the secretary of the civil service commission, and that this status continued on the certified payrolls for more than twelve years.

The Greater New York charter (Laws of 1897, chap. 378, § 1536) provided that, upon consolidation, employees in the different boroughs should be assigned, as nearly as may be, to pex’form the same service under the new city officers; incumbents of positions abolished or made unnecessary by consolidation were to be preferred for appointment, and their names placed on proper eligible lists, with a px’eference after vetex’ans.

It is now contended that the relator’s name was wrongly on this list, because his prior position in the service of the village of Jamaica had legally terminated six months befox’e consolidation, namely, in July,. 1897, when the new Village Law (Gen. Laws, chap. 21; Laws of 1897, chap. 414; now Consol. Laws, chap. 64; Laws of 1909, chap. 64) repealed the General Sewer Law (Laws of 1889, chap. 375, as amd.).

It would be a strange result that the enactment of the Village Law (which did not apply to any village like Jamaica, incorporated under a special law,- sections 340, 341; now sections 380 and 381) had suddenly cut off the tenure of all sewer engineers, inspectors and other employees engaged upon the sewer service of J amaica. However, the J amaica sewer system and the relator’s employment had not been under the General Sewer Law, but were by virtue of the special local acts for Jamaica (Laws of 1814, chap. 168, as amd. by Laws of 1855, chap. 264; Laws of 1862, chap. 210; Laws of 1870, chap. 266; Laws of 1890, chap. 369; Laws of 1892, chap. 344; Laws of 1894, chap. 157), which recognized the right of Jamaica to construct, operate and maintain sewers.

The record shows relator’s appointment and designation as a sewer inspector in the village of Jamaica, in May, 1897. Before that (in 1893 and 1894) the relator had surveyed and mapped the local sewerage system, and had supervised its building, when he acted as assistant engineer, and was so designated in his salary checks. Although relator was not allowed to testify as to his direct relations with Jamaica in 1897, sufficient appeared to show a continuous employment by that village up to Decemher 31, 1897. Therefore, within the terms of section 1536 of the Greater New York charter, Mr. Crowell was clearly an incumbent of a position, since these local sewer inspectors were unaffected by the repeal of the General Sewer Law. The civil service commission, therefore, lawfully placed his name on the eligible list.

In the present proceeding the borough president could not attack the grading and rank given to the relator on such an eligible list. (Matter of Simons v. McGuire, 204 N. Y. 253; People ex rel. Moriarty v. Creelman, 206 id. 570.) And after his appointment in the department of bridges, the power of the board of estimate to fix the relator’s salary may not be reviewed in this proceeding. (Walters v. City of New York, 190 N. Y. 375.)

After a head of department has had names certified by the civil service commission, and has made an appointment therefrom, and thereafter an employee’s status has remained long under protection of the civil service laws, his position and tenure of office is not open to collateral attack, especially in the course of a hearing upon charges for his removal. (Matter of Seeley v. Stevens, 190 N. Y. 158.) His incompetency or other unfitness, if made out, may be a ground for dismissal, but failing to support these specifications of incompetency, the borough president cannot summarily end his tenure by a dismissal, based upon alleged doubts as to how, at consolidation, he had been continued over and entered into the service of the greater city. Such an incumbent is entitled to stand on his appointment from the eligible list, and to the protection it conferred, until the invalidity of his appointment shall be made out. (People ex rel. Dwyer v. Hogan, supra.) This result does not reinstate an official lacking in efficiency, or in technical qualifications for his duties, for all these elements of fitness, though assailed in the charges, stood admitted on this record before the relator was called on for his defense. The protection of the relator’s right to a position to which he was appointed is assured to him by the statutes of this State, unless he be found guilty after a hearing in a judicial proceeding. Although complaints and even formal charges may emanate from another city department, even a bureau organized for investigation, still, accusations from such official sources must be established by testimony, taken in the presence of the relator, and subjected to an investigation conducted so as to protect his statutory rights. Where such charges are not sustained, leaving the finding against the accused official against the weight of evidence, the conditions essential to exercise the power of removal are wanting.

Hence, respondent’s determination dismissing relator should be annulled upon the law and the facts, and the relator ordered reinstated in the position from which he was removed on July 15, 1913, with fifty dollars costs and disbursements.

Jenks, P. J., Bubb, Thomas and Cabb, JJ., concurred.

Determination annulled upon the law and the facts, and relator ordered reinstated in the position from which he was removed on July 15, 1913, with fifty dollars costs and disbursements.  