
    The People of the State of New York ex rel. Thomas Moloney, Relator, v. George C. Waring, Jr., Commissioner of the Department of Street Cleaning of the City of New York, Appellant.
    
      Veteran, and exempt fireman—may be discharged, without charges and a hearing, where his services .are, not required.
    
    Where a veteran of the volunteer Are department of the city of New York and an honorably discharged soldier, an employee of the New York street cleaning department, is dismissed therefrom iii the interests of economy and -because his services are not needed, and not as a mere pretext to get rid of him or with the view of appointing another person in his place, the commissioner is not bound to present charges and give him. a hearing.
    Appeal by George 0. Waring, Jr., commissioner of the department of street cleaning of the city of New York, from a final 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 20th day of May, 1896, directing that a peremptory writ of mandamus issue directing him to reinstate the relator in the position of engineer of stable “ A ” in the street cleaning department, which order was granted on the decision of a referee appointed to hear and determine issues of fact raised by the return to an alternative writ of mandamus, and also from the decision of said referee. •
    
      Robert Shaw Barlow, for the appellant.
    
      W. N. Hopcroft, for the respondent.
   O’Brien, J.:

The relator was a veteran of the volunteer fire department and an honorably-discharged soldier. On May 4, 1894, he was appointed engineer of stable A ” in the street cleaning department, and continued in that position till May 1, 1895, when he was discharged without a hearing. Such discharge was pursuant to a letter from the assistant superintendent that his services were no longer needed.

The only question of fact we deem it necessary to discuss is, as to whether the "cause assigned was true.

Although rated as ah engineer, the relator was not performing, at the date of his discharge, the work of an engineer; there was an engine there to run but he never ran it, that work being performed by another who always ran it. The relator used to polish up the-fire engine and did little odd chores.

There is some question as to whether this other man was a licensed engineer or a plumber, but that seems to us to be immaterial as he-did the work of an engineer, always ran the engine and was engaged in such work before the appellant became commissioner, and, as stated, the relator never performed the duties of engineer.

The relator was discharged because there was nothing for him to do; there was no use for his services; ” and nobody was ever appointed to fill the position formerly occupied by the relator.

This evidence is not refuted, and it thus appears that having no further use for his services, which could as well be performed by others then in the service, there is no law or reason to prevent the commissioner, in the interest of economy, from exercising his undoubted right of dismissal. Nor can we find upon this record. that it was a mere pretext to get rid of the relator or appoint another in his place, for no such facts appear. As to the relator’s right as a veteran to a hearing, what was said by Judge Beekman in People ex rel. Patten v. Waring (N. Y. L. J., Nov. 7, 1895) is apposite: “ The petitioner was an employee of the department of street cleaning in the city of New York as a driver.. On the 16th day of June, 1895, he was discharged from his employment, and notified that his services would not be required after that date. No charges.were preferred against him, nor is it claimed that lie has been guilty of any misconduct. The reason for his discharge is disclosed in a letter addressed to him by the commissioner in the following language: You were discharged from this department only because your services were not needed.’ * * * The petitioner is- a veteran of the late civil'war and received an honorable discharge. * * * The ground of his discharge was not such as to bring his case within the statutory requirement, which prohibits removal except' for cause shown after a hearing. * * ' * The statute must receive a reasonable construction,, and plainly refers to that class of removals which .are predicated upon the personal conduct of the employee. In such cases it is obviously reasonable that the person proceeded against should be offered an opportunity of vindicating himself against charges imputing misconduct or delinquency in the performance of his duties. But where the discharge is contemplated without any imputation upon.the employee, and solely on the ground of economy in the public service, .it would be highly absurd to gravely notify him that he is to be removed * * * because of some rearrangement of the force' of the department which renders - the employment of so many men Unnecessary, and to invite a discussion of this matter between the head of the department and his subordinate.”

The -order should be reversed and the writ should be denied, with costs.

Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred.

Order reversed and writ denied, with costs.  