
    The People of the State of New York ex rel. Frank E. Brown, Respondent, v. John H. O’Brien, as Commissioner of the Department of Water Supply, Gas and Electricity of The City of New York, Appellant.
    First Department,
    March 24, 1910.
    Civil service — removal of employee — mandamus to compel reinstatement does not lie.
    Where a person holding a position in the city of New York under the classified civil service was not discharged until he had been notified of the charges against him and given an opportunity to appear and answer, mandamus does not lie to compel his reinstatement.
    Mandamus is not a writ of review, and where an opportunity to appear and answer was given the court will not consider the' merits of the charges.
    Such person is not entitled to a peremptory mandamus ordering his reinstatement because the head of the department did not immediately file reasons for the removal as required by the charter and the civil service rules, if he supplied the omission promptly when his attention was called to it.
    Appeal by the defendant, John H. O’Brien, as commissioner, etc., from 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 December, 1909.
    
      Terence Farley of counsel [Theodore Gonnoly with him on the brief], Archibald R. Watson, Corporation Counsel, for the appellant.
    
      Henry 8. J. Flynn of counsel [Samson Friedlander with him on the brief], Flynn <& Hess, attorneys, for the respondent.
   Clarke, J.:

This is an appeal from an order of the Special Term directing a peremptory writ of mandamus to issue commanding the commissioner of water supply, gas and electricity of the city of New York to forthwith and immediately restore, reinstate and retain Frank E. Brown, the relator, to and in the office' and position of electrical engineer of the electrical bureau for the boroughs of Manhattan and the Bronx.

Relator was in the classified civil service and was the head of a bureau and, therefore, under section 1543 of the charter (Laws of 1901, cliap. 166) he could not be removed until allowed an opportunity of making an explanation. He was suspended. An investigation was going on in regard do his bureau. He. waited some months and began proceedings for a mandamus. • He was. then "served with notice of charges and given an opportunity to appear on the eighth of February to give an explanation, or was permitted to do so in writing. He. chose to submit on that day a voluminous answer in writing by his- counsel. The commissioner inquired if he desired to appear for further explanation, and the answer was that he did not care to attend or appear in person. Thereafter the " commissioner removed him. He did not at once, however, file the reasons therefor as required by the charter and the civil service rules, but when that .was called to his attention by these proceedings he promptly did so.

We have held repeatedly that a mandamus proceeding does not act as a writ" of review, and if the opportunity, to make an explanation has been granted we will not consider whether the charges ought to have been sustained. In People ex rel. April v. Butler (122 App. Div. 790) we .held that the filing of the statement of the grounds of removal as required by the charter was not a condition . precedent) but it was enough if said statement was subsequently filed.

The commissioner, in his answer, stated that he" found relator guilty of the particular charges, after having given him an opportunity for an explanation and after consideration thereof. There is nothing for the court to review in this proceeding.

The commissioner is vested with the power of removal when he follows the procedure provided by the statute.

The order appealed from should be reversed, With ten dollars costs and disbursements to the appellant) and the. motion denied, with ten dollars costs.

Ingbaham, P. J., Laughlin, Scott1 and Miller, JJ., concurred.

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