
    The People of the State of New York ex rel. Lewis M. Segee, Respondent, v. Nicholas J. Hayes, as Fire Commissioner of the City of New York, Appellant.
    
      Mandamus — motion to quash, denied where the petition is not a part of the record, —fire department of New York city—the secretary of the relief fund is not an officer — his right to malee an explanation before his removal — when his remedy for removal is by mandamus — when the remedy is by certiorari.
    
    Where, on a motion to quash a writ of mandamus, the petition upon which the writ was granted is not made a part of the record, the court must assume that the writ was properly granted.
    
      Semble, that the secretary of the relief fund in the office of the fire "commissioner of the city of New York is-an employee of the fire department, and not in any sense a public officer.
    
      Quatre, whether the person appointing the secretary is obliged, before he can remove him, to give him an opportunity to make an explanation, as provided by section 1543'of the charter (Laws of 1901, chap. 406).
    Where a person holding a subordinate position in a department of the New York city government is discharged in violation of section 1543 of the charter without any investigation as to charges made against him, or without giving him an opportunity to make an explanation, the proper remedy for his reinstatement is an application for a writ of mandamus.
    Where, however, there has been a trial of charges against the subordinate, or an investigation into the conduct of the subordinate upon notice to him, after which • the appointing power lias determined that the charges or reasons assigned for his dismissal have been established andaré sufficient to justify his removal, the proper proceeding to review the determination of the appointing power is by a writ of certiorari
    Appeal by the defendant, Nicholas J. Hayes, as fire commissioner of the city of New York, 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 7tli day of February, 1905, denying the defendant’s motion to quash an alternative writ of mandamus theretofore issued upon the application of the relator.
    
      Montgomery Hare, for the appellant.
    
      Charles H. Hunter, for the respondent.
   Ingraham, J.:

The relator presented a, petition' to the Supreme Court which granted an alternative writ of mandamus commanding the defendant to reinstate the relator as secretary of the relief fund in the fire department of the city of New York or show cause to the contrary thereof. The petition upon which this writ was granted is not a part of the record, and it would be impossible for the court to pass upon the question as to whether or not the writ should have been quashed without a consideration of the petition upon which it was granted. In the absence of such petition we must assume that' the court correctly granted the writ. A motion was subsequently made to qtiash the writ upon an affidavit of the fire commissioner from which it appears that the position of secretary of the relief fund in the office of the fire commissioner in the fire department, which was held by the relator, was, on March 29, 1902, transferred by the civil service commission from Schedule B, composing the competitive class, to Schedule A, composing the exempt class; that the duties of the relator as secretary of the New York .fire departin'—* relief fund were highly confidential and, in many respects, ... a fiduciary character, the performance of the duties of this department requiring the trust and confidence of the commissioner of the fire department; that the commissioner denied the allegations in the petition that, as secretary of the relief fund, the relator was a regular clerk in the fire department, or the head of a lawfully constituted bureau therein, or that his duties were of a purely clerical nature and in no sense confidential; that on the removal of the relator on the 8th day of April, 1904, the commissioner duly appointed his successor, who has held the position ever since and is performing all the duties thereof and receiving the salary attached thereto. Upon this affidavit a motion was made to quash the alternative writ of mandamus, but was denied. , . ■

The defendant bases his appeal upon the ground that the relator; holding a public office within the meaning of subdivision 1 of section 1948 of the Code of Civil Procedure, must proceed by a writ of quowarranto, and this contention is based upon the case of People ex rel. McLaughlin v. Police Commissioners (174 N. Y. 450). It was-there held that the relator, who was a captain of police of the police-force of the city of Yonkers, was a public officer, and that wheré the title to a public office was in dispute, the proper method of trying it is by information in the nature of a writ of quo Warranto and not by mandamus. Without the petition upon which the writ -was granted, it would be manifestly impossible for us to determine whether or not the relator held a public office or was a mere employee protected in his position by the provisions of the charter. From what we can gather as to his duties from the record it would seem that he was an employee in the department and not in any sense a public officer. There is no such office as secretary of the relief fund in the fire department provided for by the charter or by any act of the Legislature. The position appears to have been created under the general provisions of the charter which authorize the heads of the departments, with the approval of the board of estimate and apportionment or the board of aldei men, to appoint the necessary subordinates for the discharge of the duties of the department. (See §§ 226,1543.) Assuming this to be his position, the question is then presented whether the appointing power was bound to give the relator an opportunity to make an explanation before his removal, as provided by section 1543 of the charter (Laws of 1901, chap. 466). That question cannot he determined upon a motion to quash, as section 2075 of the Code of Civil Procedure provides that “ an alternative writ of mandamus cannot be quashed or set aside upon motion, for any matter involving the merits.”

The question is also presented as to the proper qiroceedings to review the action of the commissioner in discharging an employee in violation of section 1543 of the charter. We think that where a person holding a subordinate position in a department of the city ¡government is discharged in violation of this provision of the ■charter, without any investigation as to charges against him, or "without giving him an opportunity to make an explanation before his removal, the proper proceeding for his reinstatement is an application for a mandamus. There having been no proceeding by the commissioner in the nature of a judicial determination of the question as to whether such emqjloyee should be discharged, there is no proceeding of a judicial nature to review, and, consequently, a writ of certiorari would not lie. An employee or subordinate under- such circumstances being dismissed from his qiosition by an unauthorized act of the appointing power, would be entitled absolutely to a reinstatement. Where, however, there has been a trial of charges against such subordinate, or an investigation into the conduct of the subordinate upon notice to- him after which the, appointing power has determined that the charges or reasons assigned for his dismissal have been established and are sufficient to justify a removal, then the q>roceeding by the appointing power has been in the nature of a judicial determination of a question submitted to him, and the proper qmoceeding to review such determination is by a writ of certiorari. The distinction, I think, is obvious. Where, there has been no determination of a question presented to the appointing power for a judicial determination and the rights secured to an employee have been disregarded, there is no judicial proceeding which can be reviewed by certiorari. Where, however, there has been such an investigation and such charges have not been establisliéd in a way contemplated by the provisions of the law under which the appointment is made,, there is a proceeding, to review which review can only be had by a writ of certiorari. There is nothing in this record to show whether or not charges were made against the relator, or whether he' was given an opportunity to make any expíanation to the commissioner, and there is nothing pi’esented which justified the court in quashing the writ. For the reasons stated, therefore, the order appealed from should be affirmed, with ten dollars costs and disbursements.

O’Brien, P. J., Patterson, McLaughlin and Hatch, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  