
    The People of the State of New York ex rel. May G. Davie, Appellant, v. James M. Lynch, as Commissioner of Labor of the State of New York, Respondent.
    Third Department,
    November 11, 1914.
    Civil service — rule 16 construed — indefinite leave of absence without pay — right of employee to reinstatement.
    The words “ separated from the service,” as used in rule 16 of the State Civil Service Commission relating to reinstatement of employees in the civil service without re-examination within one year from the date of separation from service, when construed in connection with section 19 of the Civil Service Law mean separation from the service by dismissal, resignation, cancellation of appointment or death.
    Hence, where an employee in the civil service has at her request been granted an “ indefinite leave of absence without pay,” she is entitled to reinstatement without examination although more than one year has elapsed since the commencement of the leave of absence.
    Moreover, as the employee was granted an indefinite leave of absence without pay, she was not “ separated ” from the service within the meaning of the rule and is entitled to reinstatement in the service.
    Appeal by the relator, May Gr. Davie, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 30th day of April, 1914, denying her application for a peremptory writ of mandamus directing the respondent to reinstate her in the position of factory inspector in the Department of Labor.
    
      Joseph A. McNamara [Alfred J. Talley and Denis R. O’Brien of counsel], for the appellant.
    
      Thomas Carmody, Attorney-General [James A. Parsons and Edward C. Griffin, Deputy Attorneys-General, of counsel], for the respondent.
   Howard, J.:

In January, 1901, the relator herein was duly appointed a factory inspector in the Department of Labor. She continued to perform her duties until about December 1, 1911, when, on account of bad health, she began to absent herself from her work, so that during the period between December 1, 1911, and April 30, 1912, she was absent from her work forty-seven days — more than one-third of the time. She presented no-excuse to the department for-her delinquency. On May Y, 1912, the Labor Commissioner wrote to the relator and told her that, on account of her inability to render services, her name had been dropped from the roster of factory inspectors. The Commissioner requested the relator to turn over to the supervising inspector her badge and the other property in her possession which belonged to the State. The relator immediately replied to this notification by two letters, the second following soon after the first and being written to elaborate the first. In these letters the relator expressed surprise that she had been dropped from the roster and requested that instead of this disposition of her matter, she be granted a leave of absence •until September or October following. She related the ill condition of her health, but explained that she expected to be in good condition soon and would then wish to return to work. The Commissioner immediately granted this request, writing, on May 13, 1912, to the relator, “You have been granted an indefinite leave of absence without pay. ” In December following the relator having concluded that she had recovered her health sufficiently to permit her to return to work, wrote to the Commissioner to that effect, and requesting that her leave of absence be terminated and that she be assigned to duty. The Commissioner replied that the quota of inspectors was full and that he could not, therefore, reassign the relator to duty. On April fourteenth following she again wrote the Commissioner, again requesting that she be reassigned to duty. The Commissioner replied that he would take her request under consideration, and a few days later he wrote her that he would not order her to be reassigned t£> work until the question of her reinstatement had been finally determined. The relator was not subsequently notified by the department whether any determination had been made concerning her reinstatement and she seems to have consulted a lawyer. Her lawyer wrote to the Commissioner concerning the matter, and on January 5, 1914, the Commissioner wrote to the lawyer in effect that the relator was not eligible to reinstatement, her reinstatement not having been effected within the year from the commencement of her leave of absence. Within two months after the receipt of this letter she instituted this proceeding for a mandamus to compel the Labor Commissioner to reinstate her.

The Commissioner of Labor contends that he is without power to reinstate the relator, being debarred from so doing by rule 16 of the State Civil Service Commission. So far as it relates to the question under consideration that rule reads as follows: “ Any person who has held a position by appointment under the Civil Service Rules, and who has been separated from the service through no delinquency or misconduct on his part, may be reinstated without re-examination in a vacant position in the same office and in the same group, subdivision and grade, within one year from the date of such separation, * * * .” Reduced to a sediment it is the contention of the Commissioner of Labor that the relator “has been separated from the service ” for more than one year and that, therefore, she cannot he reinstated without another examination. It becomes essential, therefore, to determine whether the relator has been “ separated from the service.” If she has not been separated from the service she has an absolute right to be reinstated and reassigned to duty; if she has been, she has no standing in this proceeding.

This rule of the State Civil Service Commission has the force and effect of law (Civil Service Law, § 6); therefore, it is as potent as the statute and must be respected to the same degree. But we must resort to the statute itself in this case for an interpretation of the expression in dispute, for it is from the statute that the expression has been borrowed by the Civil Service Commission. And there can be no difficulty in discovering the meaning of the words as they are used in the statute, for we find them limited and explained in that place. In section 19 of the Civil Service Law occurs this sentence: “The official roster shall show opposite or in connection with each name the date of appointment, employment, promotion or reinstatement, the compensation of the position, the date of commencement of service, and date of transfer in or separation from service by dismissal, resignation, cancellation of appointment or death.” It is here seen that the statute recognizes and points out the ways, and the only ways, in which a person can be separated from the service; that is, by dismissal, resignation, cancellation of appointment or death. None of these conditions arose in the instance before us. The woman was not dismissed, she did not resign, her appointment was not canceled, and she did not die; therefore, she was not separated from the service. The definition in the Civil Service Rules must follow the definition in the law itself, for this is the command of the law. Section 10 of the Civil Service Law provides that the Commission may make rules not inconsistent with 1 ‘ the provisions of this chapter * * * .” The expression “separation from service” or the expression “separated from the service ” has, therefore, the same meaning in the rules that it has in the law. In the rules the meaning of the words is in no degree unlike their meaning in the statute; it is no broader, no narrower, no different.

But it is hardly necessary to resort to the statute for an interpretation of the conditions here. The language of the Commissioner to the relator in his letter was plain and unambiguous. His words must be given their ordinary meaning in English. He stated to the relator, “ you have been granted an indefinite leave of absence without pay.” These words could have hut one meaning. The Commissioner had intended at first to dismiss the relator absolutely from the service. He retracted when the relator acquainted him with the circumstances and informed him of her illness. It is idle to say that he did not intend to effect a change by his second letter. He thought better of his purpose to absolutely discharge the relator and thus “separate her from the service.” Instead of that disposition of her matter he granted her “ an indefinite leave of absence; ” that is to say, a right to be away from her work indefinitely, and, therefore, by corollary, a right to come back whenever she pleased. She was given the absolute power to decide when she would return; the option rested with her alone. Of course this depended upon her good faith. She would not be permitted to abuse the courtesy which had been extended to her. As soon as her health returned it became her duty to return to the service. And she did so; that is, indicated a desire at least to do so. If there were no limitation or interpretation in the statute, the words “separation from service ” could never be held to include a leave of absence from the service. If the relator had a right at any minute to return to the service she was no more separated from it than an employee is when on an ordinary two weeks vacation. The right to return in the latter case is fixed and definite; in the former case it is not fixed and is indefinite; but in each case there is the right to return, and, therefore, the employee is not separated from, but connected with, the service.

There was nó laches. The relator was persistent in her demand for reinstatement. The Commissioner held her up from April 25, 1913, until January 5, 1914, without advising her as to his determination concerning her reinstatement, and then he only advised her after her lawyer had written. This is the first time the Commissioner made absolute refusal to reinstate her. This was her first discovery of the wrong for which she seeks redress. She verified her petition in this action on the twenty-fifth of February following and on the twelfth of March instituted the proceeding.

The order of the Special Term should be reversed and the writ should issue.

All concurred.

Order of the Special Term reversed and peremptory writ of mandamus granted directing' that the relator be restored to the roster or list of eligible employees, and that she be assigned to the first vacancy in this position or in a position similar to the one which she previously held, regardless of the name of the position.  