
    The People of the State of New York ex rel. Mary K. Vineing, as Administratrix with the Will Annexed, etc., of Henry E. Vineing, Deceased, Respondent, v. Nicholas J. Hayes, as Fire Commissioner of the City of New York, Appellant.
    First Department,
    December 3,1909.
    Municipal corporations — civil service — abolition of position in fire department — exempt fireman entitled to bearing — mandamus — proof necessary for reinstatement.
    The act of the fire commissioner of the city of New York in abolishing a position held by an exempt volunteer fireman does not discharge him absolutely, hut by virtue of section 1543 of the charter suspends the incumbent without pay for one year within which time he remains eligible, according to his original . ranking upon the civil service list, for appointment to a similar position.
    Where the incumbent protested against the abolition of his office lie may maintain'mandamus to compel reinstatement, or appointment to a similar position, upon the ground that as an exempt volunteer fireman he could not be removed without a hearing.
    Moreover, no protest was necessary, where the proceeding is based on an allegation that the position was abolished by the commissioner in bad faith and for the purpose of removing the incumbent.
    An exempt volunteer fireman cannot he removed from the fire department except upon a hearing. While the fire commissioner can abolish a particular office, he cannot do so solely for the purpose of removing the incumbent without a hearing.
    It is immaterial that the fire'commissioner in abolishing an office desired to discharge the incumbent, if the office was not necessary to the department, or if the work could he conducted more economically by dividing it among other employees.
    Evidence examined, and held, that the relator was not an exempt volunteer fire- ■ man, but became a member of a hose company solely to claim exemption.
    Appeal by the defendant, Nicholas J. Hayes, as fire commissioner 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 24th day of July, 1908, granting the relator’s motion for a peremptory writ of mandamus, and also from an order dated the 16th day of June, 1908, and entered in said clerk’s office, denying the defendant’s motion for a new trial of the issues raised by an alternative writ and the return thereto.
    
      
      Terence Farley, for the appellant.
    
      Julius M. Mayer, for the respondent.
   McLaughlin, J.:

Henry E. Vineing, the original rélator in this proceeding, was, about the 1st of July, 1903, duly appointed electrical engineer in the fire department of the city of Hew York, and he thereafter entered upon the performance of his duties as such, having previously served as inspector of fire alarm boxes. In July, 1906, John H. O’Brien, commissioner of the fire department) abolished the position of electrical engineer and discharged Vineing, who immediately protested that the action of the commissioner' was in violation of section 1543 of the Greater Hew- York charter (Laws of .1901, chap. 466) and section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1904, chap. 697), since he was an exempt volunteer fireman. Thereafter, for the same reason, he requested O’Brien to appoint him to the position of superintendent of fire alarm telegraph, and subsequently made a similar request to Francis J. Lantry, who succeeded O’Brien as commissioner. His requests'were unavailing, and he thereupon obtained an alternative writ of mandamus to compel the .commissioner of the fire department to either reinstate him as electrical engineer or appoint him superintendent ■ of fire alarm telegraph, on the ground that the position formerly held by him had been abolished solely for the' purpose of removing him, and, being an exempt volunteer fireman) he could not be removed without a hearing. Upon the trial of the issues raised by the return to the writ the jury found that Vineing was an exempt volunteer fireman, and that the position of electrical engineer had been abolished by the commissioner in bad faith. A motion for a new trial was denied, and an order made directing the issuance of a peremptory writ commanding the commissioner of the fire department to reinstate Vineing to the position of electrical engineer. The appeal is from both orders. Prior to the trial .the present appellant became fire commissioner in place of Lantry and was substituted as a party. Since the trial Vineing has died) and his administratrix eum testamento annexoh&s been substituted in his place".

Assuming that Vineing was an exempt volunteer fireman, the effect of the commissioner’s action in abolishing, the position which he held was hot to discharge him absolutely, but instead under section 1543 of the Greater Hew York charter, to suspend him without pay for a year, within which time he remained eligible according to his original ranking upon the civil service list for appointment to a similar position. It was upon this theory, apparently, that he asked to be appointed superintendent of fire alarm telegraph. It seems that this position had never been regularly created, or at least no one up to the time of the trial had been appointed to fill the same and for this reason his demand for this relief was expressly withdrawn at the trial. The appellant contends that having asked for this appointment he was not entitled to maintain this proceeding to be reinstated as electrical engineer because he had made no demand for such relief prior to’ the commencement of the proceeding. (People ex rel. O'Brien v. Cruger, 12 App. Div. 536; People ex rel. McDonald v. Clausen, 50 id. 286; People ex rel. Taylor v. Welde, 61 id. 580.) He had, however, protested against the abolishment of the position which he held, and I think this was sufficient. Moreover, the proceeding is based upon the allegation of bad faith upon the part of the commissioner in removing him, and for this reason no demand was necessary. (People ex rel. Bean v. Clausen, 50 App. Div. 324.)

The question presented depends for its solution upon the determination of the fact as to whether or not Vineing at the time ivas an exempt volunteer fireman.. If he was, then he could be removed only after a hearing, which he did not have. The fact is not disputed that the commissioner had the power to abolish the position of electrical engineer, but while he had this power he could not legally exercise it for the sole purpose of removing Vineing without a hearing. (People ex rel. Corrigan v. Mayor, etc., 149 N. Y. 215; People ex rel. Shields v. Scannell, 48 App. Div. 69; People ex rel. Bean v. Clausen, supra; Matter of Jones v. Willcox, 80 App. Div. 167.) The burden of proof, ‘of course, was upon the relator to show not only that he was an exempt volunteer fireman, but-that the commissioner acted in bad faith in abolishing the position. I-do not think in either respect he sustained this burden. At the trial it appeared that after Vineing’s removal the commissioner proposed to establish, a new position called superintendent of fire alarm telegraph, the duties of which it is claimed were similar to those of-electrical engineer. Such position, however, was not established and although the salary list and number of employees in the department' were thereafter increased, it does not clearly appear that any of the new employees performed work similar to that which Yineing did prior to his removal. If the position of electrical engineer was not a necessary one, .then it was the .duty of the commissioner to abolish it and if there was no work for Yineing to do, or if his work could be divided among others then employed, it was also his duty in the interest of economy to abolish it. In any event, to entitle the relator to the relief asked he had to establish the contrary. The fact that the commissioner was willing or desired to be rid of the services of Yineing is of no importance if either of the other facts existed — that is, that there was nothing for him to do or the services which he was performing could be performed by others then employed.

It seems to me, therefore, that the court erred in charging the jury, in substance^ that they might find the position had been abolished in bad faith if the commissioner acted with a view to removing the relator. The charge in this respect should have been qualified by stating to the jury that they' must also .find, in that event, that the abolishment of the position was not real, and that some person or persons had thereafter been appointed to perform all or part of the same duties.

I am also of the opinion that the finding that Yineing was an exempt volunteer fireman was not warranted by, but was against the evidence. The evidence which it is claimed established that fact is, in substance, this : In October, 1902, he became a member of Union Hose Company No. 8, North Shore Fire Department on Staten Island and continued to be such member until the company disbanded in 1905. At the time it disbanded it had simply one hose cart and over 500 members. It is perfectly obvious that this company was not organized or maintained in good faith, but solely for the purpose of claiming the statutory exemption. Yineing frankly admitted, while'being examined as a witness, that one of his reasons for joining the company was the exemption it would afford him, and the only fair inference which can be drawn from the evidence bearing on that subject is that that was. his only motive. During all the time which he claims to have been a member he was a paid member of the fife department of the city of Hew York. From July, 1902, until the end of- the year 1903, most of the service which he rendered, and for which he was paid in connection with the New York fire department, was on Staten Island. Soon after he commenced work there he boarded for some three weeks at the home of one Willis, which was the address he gave when he joined that company. He never had any property on Staten Island and during all the time he claimed he was a member of the company he lived with his wife and children in Brooklyn and voted there. Willis testified that he had seen Yineing at fires, but could riot state any particular fire where he had seen him. The secretary of the company testified that he did not recall having seen Yineing at any fires, while Yineing himself testified : “ I attended -fires during the years 1902, 1903, 1901 and 1905 — the early part of 1905. * * * During that time I was frequently in Staten Island at night; not all the time. I averaged about three nights a week, sir, during all those years; some weeks I was there all the week. * * * I liad a telephone in my house in Brooklyn to let me know when a fire broke out in Staten Island.” He could, however, recall only one fire which he attended in 1903, though he did state he remembered four or five which he attended in 1901, and he did attend fires in the other years.

It is perfectly clear, when all of the evidence offered bearing upon the issues is considered, that Yineing never joined the Staten Island company, in good faith, with the intention of performing services therein, but that his action in that regard was a mere sham taken solely for the purpose of bringing himself within the provisions of the statute so that he might claim its benefits. The case in this respect.falls clearly within the decision of this court in People ex rel. Schulum v. Harburger (132 App. Div. 260).

The orders appealed from, therefore, must be reversed and a new trial granted, with costs to the appellant to abide the event.

Ingkaham, Ladghlin, Houghton and Scott, JJ., concurred.

Orders reversed and new trial ordered, costs to appellant to abide event.  