
    The People of the State of New York ex rel. Jeremiah Lawson, Relator, v. Bird S. Coler, as Comptroller of the City of New York, Respondent.
    
      Civil service — removal of an inspector in New York city—inability to balance his account booh sufficient ground therefor—manner of hearing—member of volunteer fire department.
    
    The action of the comptroller of the city of New -York in dismissing for incompetency an inspector in the bureau for the collection of city revenues and markets for the borough of Brooklyn, who Bad been appointed to his position as the result of a competitive examination, will not be disturbed by the Appellate ' Division where it appears that the inspector dismissed was unable to balance his account book, and offered no explanation of his inability in this respect, and that he could not add correctly his collections for part of a month.
    Section 18 of chapter 854 of the Laws of 1888, as amended by chapter 186 of the Laws of 1898, which provides that “ if á person holding a position subject to competitive examination in the civil service of the State or of a city, shall he removed or reduced, the reasons therefor shall be stated in writing and filed with the head of the department or other appointing officer, and the person so removed or reduced shall have an opportunity to make an explanation,” only requires that the reasons inducing the contemplated removal shall- be communicated to the person proposed to be dismissed, and that he shall be- fairly heard, and it does not contemplate that ^formal trial shall be had before the head of the department and that the charges shall be verified under' oath and the witnesses be sworn-— the explanation may he heard before a principal deputy of the department. ,
    An averment “ that petitioner is a volunteer fireman, and was a member of Hose Company No. 31 of the city of New York, now borough of.Manhattan,” unaccompanied by any allegation that the petitioner has served the time required by law in the volunteer fire department, or that he was a member thereof at the time of its disbandment, is not sufficient to entitle the petitioner to the protection of chapter 577 of the Laws of 1892.
    Certiorari issued out of the Supreme Court and attested on the . lath day of December, 1898, directed to Bird S. Coler, as comptroller of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all his proceedings had in relation- to the removal of the relator from his position as inspector in the bureau for the collection of city revenue and markets in the borough" of Brooklyn.
    
      
      George W. McKenzie and George P. Beebe, for the relator.
    
      William J. Carr, for the respondent.
   Willard Bartlett, J.:

In August, 1898, the relator was an inspector in the bureau for the collection of city revenue and markets for the borough of Brooklyn, in the finance department of the city of New York, lie had been appointed to this position as the result of a competitive examination. On August 12, 1898, he was notified by the assistant superintendent of markets in the borough of Brooklyn to appear before the comptroller, on the fifteenth day of that month, and answer charges for incoinpetency in Wallabout Market. A copy of these charges had been delivered to him on the same day. He was accused of incompetency in four respects: (1) In having failed to comply with .the request of the chief clerk to have his book balanced in July early enough to give ample time to prepare the August' receipt book; (2) in presenting an incorrect book to the assistant superintendent of markets, showing a deficiency of $30, and' in being confessedly unable to balance said book; (3) in having failed to have it balance correctly, after having had it in hand eight days for that purpose; and (4) in presenting his daily statement prepared in different hands, showing that others made out his reports The return shows that a hearing was had' before the deputy comptroller of the city of New York on August 15, 1898, at which the relator was questioned in ' regard to the several specifications already mentioned, and was apparently allowed to explain the same as fully as he desired He admitted; that his book ‘showed a deficiency of $30, and that he was unable to balance it. He could not remember whether it had been retfirned to him to have it balanced correctly and he had kept it eight days over time or not. He acknowledged that some of his reports were written by persons other than himself. He was requested to add up in his book the - items which he had collected thus far in the month, and, as the result, gave upon his first attempt $6,348.88, and upon a second trial, .$6,519.65.- The minutes show that the deputy comptroller added the same items and found the total to be $6,619.69. . ,

. The mere fact that some of the. relator’s reports were written by others than himself would not, in our judgment, suffice to establish in competency; but we cannot say that the comptroller was wrong in holding the relator to be disqualified for his position when it appeared that he was unable to balance his account book, and offered no explanation of his inability in this respect, and when it further appeared that he could not even add up correctly his collections for part of a month. ■

The only condition precedent to the right of the comptroller to remove the relator was that he should have an opportunity to make an explanation. The statute prescribing this condition is section 13 of chapter 354 of the Laws of 1883, as amended by chapter 186 of the Laws of 1898, which provides that “ if a person holding a position subject to competitive examination in the civil service of the State or of a city shall be removed or reduced, the reasons therefor shall be stated in writing and filed with the head of the department or other appointing officer, and the person so removed or reduced shall have an opportunity to make an explanation.” It is now settled that this statute applies to the city of New York. (People ex rel. Fleming v. Dalton, 158 N. Y. 175.) The relator claims, however, that he is also protected from removal, except upon cause shown after a hearing had, under chapter 577 of the Laws of 1892. That act, it is true, does restrict the power of removal in the case of volunteer firemen “ who shall have served the time required by law in the volunteer fire department of any city, town or village in the State or who shall have been a member thereof at the time of the disbandment of said volunteer department.” The allegations of the petition do not suffice to show that the relator comes within the class thus specified. The only averment on the subject is “that petitioner is a Volunteer fireman, and was a member of Hose Company No. 31 of the City of New York, now Borough of Manhattan.” There is no allegation that he has served dhe time required by law in the volunteer fire department or that he was a member thereof at the time of its disbandment.

The act of 1898, in providing that the person whose removal is contemplated shall have an opportunity to make an explanation, implies that if the explanation disproves the existence of the supposed reasons for removal, the accused person will be allowed to retain his position. Whether, if it should appear in such a pro-seeding as this that an explanation had been offered which: clearly ought to have been accepted by the superior officer as satisfactory, $the statute would give the courts any right to interfere with the ■determination, need not be decided in the present case, for the act of iremoval is clearly beyond judicial control when, as here, the reason -assigned for it is a good one, and the explanation offered shows that fit has a sufficient foundation in fact. :

The proceeding is. attacked on several other grounds! which -require to he noticed. The charges were not verified under oath, -no witnesses were sworn, and the hearing was had before the deputy ■comptroller instead of before the comptroller himself. These objections would be substantial if the opportunity to make an explanation, provided for by the act of 1898, was in any sense a trial like a proceeding for the removal of a police officer in which the witnesses must give their testimony under oath, and in which a conviction of the accused upon the charge which is preferred against him must precede removal. The act of 1898 contemplates no such formal procedure. It requires nothing more than that the reasons inducing the contemplated removal shall be communicated to. the person proposed to be dismissed, and that he shall he fairly! heard, if he -desires to be heard, in his own behalf to explain any alleged ¡misconduct, neglect or incapacity on his part. We do not think it is necessary that the explanation provided for by the law should be made personally to the head of the department in which the person Is employed. It seems to afford adequate protection if made to a principal deputy, who communicates it to the superior officer by whom the removal must actually be made.

The determination of the comptroller should be confirmed.

All concurred.

Determination confirmed, with ten dollars costs and disbursements.  