
    People ex rel. Patrick H. Corrigan, Resp’t, v. Mayor, etc., of City of Brooklyn, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 2, 1895.
    
    Office and officers—-Abolishing office.
    Under chapter 577 of 1892, a veteran cannot be deprived of his position by "a resolution of the city council abolishing the office for economical reasons, and devolving the duties upon another official, while such veteran is ready to perforin any part of the duties belonging to his office at such salary as council "may fix.
    
      Appeal from an order granting a peremptory writ of mandamus to issue.
    
      A. G. McDonald,, for app’lts;
    
      Charles J. Patterson, for resp’t.
   Pratt, J.

This is an appeal from an order granted at special term directing a peremptory writ of mandamus to issue, commanding the defendants to reinstate the relator to the position held by-him, and also from an order denying the motion made by defendant for a reargument of the original motion. We think the opinion filed below at special term fully answers the contention made by the appellants, and we therefore recommend that the same be( affirmed upon that opinion, and also that the decision upon the motion for a reargument be affirmed with costs.

The opinion of Mr. Justice Brown at special term is as follows:

On March 29, 1886, the relator, by a resolution of the common council, was appointed “ keeper of the Truant Home.” Thereafter he was called and was known as “superintendent.” On January' 3, 1895, he was removed from such position.by resolution of the same body, which is as follows: “ Resolved, that the position of superintendent and farmer at the Truant Home be, and the same is hereby abolished, from and after the first day -of May, 1895, fop economical reasons, and that the incumbents of the several positions be, from and after said date, dismissed, for the same reasons. Resolved, that the duties heretofore performed by the superintendent of the Truant Home be, from and after the first day of May, 1895, devolved upon Eugene Martyn, a teacher of said home. Resolved, * * * That John Eisemap be, and he hereby is, appointed janitor of the Truant Home, and that he receive for his services as such janitor the sum of four dollars per day. * * *

The relator, being a veteran of the war, and also a volunteer . fireman, was protected from removal, except for cause, after a hearing. Laws 1888, ch. 119; Laws 1892, ch. 577. The purppse, and force of statutes of the character of those invoked by the relator have been set forth and explained in the court of appeals in People v. Board of Fire Com’rs of City of New York, 72 N. Y. 445, and the statutes referred to have recently been applied in several cases in this court. The intent of these and similar statutes, it was said in the case cited, was “to continue in the subordinate positions of the city government those who had proved themselves faithful and trustworthy, as well as competent to discharge the duties of their stations, ” and the cause assigned for removal must be personal to the incumbent of the position. An officeholder has, however, no right to have the office retained for his benefit, and hence he may be removed when the office is abolished, or when the appropriation for payment of his salary is exhausted. But, as was said by Justice Cullen in the case of the clerks in the city clerk’s office, to deprive a person of his employment by the abolition of his position, the abolition must be real and substantial, and not formal and nominal. Applying these rules to this case, the facts stated in the moving papers may be examined." The resolution of the common council must be read as a whole. It abolished the office of keeper, and created that of janitor. It stated this was done for “ economical reasons.’’ If the effect of this was to substitute one man for another in the performance of the same duties at a reduced salary, it would, without doubt, fall within the prohibition of the statute, unless the incumbent refused to accept the reduced pay. Tne object of the statute being, as was said by the court of appeals, to continue in office faithful, trustworthy, and competent persons, it would not be a sufficient cause for their removal that another person could be procured willing to serve at a lower rate of pay. The incumbent should have an opportunity to remain in office at the reduced salary, and thus the “economical ” spirit would -prevail, and the city retain an experienced and faithful servant. But to remove an incumbent, without a hearing, because the appointing officers had determined to reduce the salary of the office, would be to defeat absolutely the plain purpose and intent of the law. The decision of this case therefore rests on the determination of the question whether there has been an honest and substantial abolition of the office, or whether there has been merely a’ change of names, and a devolution of the duties of the office upon a new appointee. So far as there is any conflict in the facts of the case upon this motion, those stated in the opposing affidavits must be taken as true. People v. Cromwell, 102 N. Y. 477; Code Civ. Proc. § 2070. By the resolution of the common council, the duties of the relator were, after his discharge, to be performed by Eugene Martyn, a teacher of the said home. The relator swears his duties were as follows: “It was my duty to make requisition for supplies for said home, and these were furnished through the department of city works, under contracts made by that department. I received all supplies, and certified to that department the correctness of all bills for the same. I also certified to the monthly pay roll of the institution, which contained the names of the employes of the home, and the sums due each for their work. There was a teacher in said home, named Eugene Martyn, and an assistant teacher. These two teachers were appointed by the common council of the city of Brooklyn. The other employes of the said home are enumerated in a schedule hereto annexed, and marked ‘A,’ and these latter were employed by me, under the direction of the committee of the common council having the matter of the home in charge. I directed and superintended the labors of all employes, except the teacher and assistant teacher, and even these latter reported to me at their.coming and going. I was in general charge and custody of the home and its inmates.” He further swears": “ Since my departure from said institution,' John Eiseman has entered said home, and has performed that part of my duties which consisted in the genéral charge of the inmates and employes of the said home, which is by far the largest part of said duties, while Eugene Martyn, said teacher, has done that part which consisted of making requisitions for supplies, receipting for the same, and certifying bills and payrolls.” Eugene Martyn swears: “That the statement in the relator’s affidavit .contained on the fourth page thereof, ‘that on the 9th day of May, 1895, John Eiseman was appointed by the common council in the place of said relator, and is now performing the duties formerly performed by him,’ is untrue; that during the superintendcy of the said Corrigan, that the duties that would naturally devolve upon a janitor of the institution were rarely if ever performed by the said superintendent; that the work may have been done under his direction, but was usually performed by the laborers or the boys; that the only work the superintendent did during his superintendency was the making of requisitions for supplies, certifying to the monthly pay rolls of the institution, and the hiring of domestic servants; that after the discharge of the relator, pursuant to the resolution of the common council, as set forth in affidavit of said relator, the aforesaid duties devolved upon deponent, and have ever since said time been performed by deponent.” Henry Vollmer, a member of the common council, swears: That the statement in the relator’s affidavit, contained on the fourth page thereof, ‘that on the 9th day of May, 1895, John Eiseman was appointed by the common conn- ■ cil in the place of said relator, and is performing the duties formerly performed by him,’ is untrue ; that during the superintendency of the said Corrigan, that the duties that would naturally devolve upon a janitor of the institution were rarely if ever performed by the said superintendent; that the work may have been done under his direction,, but was usually performed by the laborers or boys; that the only work the superintendent did during his' superintendency was the making of requisitions for supplies, certifying to the monthly pay rolls of the institution, and the hiring of domestic servants; that after the discharge of the said relator, pursuant to the resolution of "the common council, ns set forth in tfie affidavit 'of said relator, the aforesaid duties devolved upon deponent, and have ever since said time been, performed by deponent.” It will he observed that the quotations from the affidavits of Martyn and Vollmer are almost identical in language, and that each swears he is performing the duties performed by the relator during his incumbency of the office. Of course, both affidavits cannot "be true, as one expressly contradicts the other; and, if I was permitted to determine the facts of -the case, I should reject both of them. Martyn’s affidavit is, however, consistent with the resolution of the common council, which devolved the duties of the office upon him, and the relator does not deny that a part of the duties "of the office are now performed by Martyn. But there is no- substantial contradiction that the relator was the janitor of the home. It is conceded that the duties now performed by Eiseinan were performed under the direction of the relator. He was originally designated “keeper” of the home. Afterwards he became known as “ superintendent,” and it is not denied that he had general charge of the institution, and that the duties of janitor were within his office. The common council could have devolved some of his duties on subordinate officers, or divided them, and given a portion to the new appointee; but as the relator was willing to perforin any part of the duties originally belonging to the office, at such salary as the common council should fix, he. was protected from removal, except for cause and after a hearing. Such construction only will give due effect to the intent of the law. The relator is entitled to be reinstated as janitor, and an order may be entered accordingly. x  