
    The People ex rel. William M. Dean, App’lt, v. William Brookfield, as Commissioner, etc., Resp’t.
    
      (Supreme Court, Appellate Division, First Department,
    
    
      Filed January 24, 1896.)
    
    1. Municipal corporation—Officers—Removal.
    The superintendent of street improvements in the city of New YorK cannot he discharged from office on a mere notice of intended consolidation of his office with another office and request for his resignation.
    2. Certiorari—Review.
    Section 2141 of the Code does not authorize the appellate court to adjudicate the rights of the relator, in such case, upon any state of facts arising after the unlawful action was taken by which he was deprived of his office.
    C. Blandy, for relator ; W. L. Turner, for resp't.
   PATTERSON, J.

—This cause- comes before the court on a writ of certiorari to review the action of the commissioner ot public works of the city of New York in discharging the relator from a position he held in that department from the year 1886 to the 81st of July, 1895, on which last-mentioned day he was dismissed from his position, by a communication sent him by the respondent, and which contained the following announcement: “Your ■services as superintendent of street improvements will not be required after this date.”

The relator was head of a bureau within the meaning of section ■48 of the consolidation act. He was the superintendent of street improvements. Bisection 817 of the consolidation act (subdivision 4) it is provided that there shall be created a bureau for 'grading, flagging, curbing, and guttering streets, the chief officer •of which shall be called the “ Superintendent of Street Improvements,” and that is the position the relator filled at the time referred to. Section 48 of the consolidation act, to which allusion has been made, also • provides that no regular clerk or head of a bureau shall be removed until he has been informed of the cause ■of the proposed removal and has been allowed an opportunity of making an explanation, a true account ,of which is to be entered on the record of the department. On the 9th of July, 1895, the commissioner of public works sent to the relator a letter asking for his resignation, and stating that it had been determined to abolish the office of superintendent of street improvemenrs on and after August 1, 1895. It is claimed by the respondent that this determination to abolish the office referred to was arrived at from reasons of economy, and that he found it expedient to abolish the distinctive office of superintendent of street improvements, and to transfer the performance of the duties of that office to another bureau, namely, that of the water.purveyor.

It will be observed that there was no charge made against the relator, and that there was no ground indicated to him as that upon which he was to be discharged. By the letter of July 9th, no information was given to him of the reason of the contemplated abolition of his office; and in the communication of July 31st there was simply a notice that his services were dispensed with. Under the provisions of the statute, the relator was clearly entitled to distinct notification, and to a hearing, and could not summarily be dismissed without it. It was competent for him to •claim, before the commissioner, that there had been no consolidation ; that he could not be discharged in mere anticipation of that •consolidation of the offices; and that no action could be taken to remove him until after a consolidation was effected, if consolidation were permissible. That it was permissible seems to result from another provision of section 48, which enacts lhat any head •of a department may, with the consent of the board of estimate and apportionment, consolidate any two or more bureaus established by law, and may change the duties pf any bureau. But it appears by the return that application was not made by the commissioner of public works for authority to make the consolidation until the 5th of August, 1895, and that a resolution was not passed giving the authority so to lj until the 30th day of August, 1895. Therefore, by the return it appears that the dismissal of the relator was made merely in contemplation, and not as a consequence, of the consolidation of the two bureaus. His independent bureau still existed, and he was clearly entitled to the office, and to discharge its duties, at the time he was dismissed by the commissioner of public works.

With what transpired subsequent to the dismissal of the relator we have nothing to do, for it does not affect the lawfulness of the act of the commissioner of public works at the time that act was committed.

It is claimed by the respondent that the dismissal would become operative on the ¿1st day of August, 1895, and that the relator would, therefore, have merely a claim for one month’s salary; and it is suggested that, under the provisions of section 2141 of the Code of Civil Procedure, the court has power to modify the commissioner’s determination so as to make it binding on the relator from the date last mentioned. But we do not consider this provision as authorizing us to adjudicate the rights of- the relator upon any state of facts arising after the unlawful action was taken by which he was deprived of his office.

It is sufficient, for all purposes of this case, that the relator was unlawfully discharged, and is entitled to be restored to the position as of the 31st day of July, 1895,- with the costs of this proceeding.

All concur.  