
    The People of the State of New York ex rel. Josiah C. Long, Relator, for a Writ of Certiorari to Patrick A. Whitney, Commissioner of Correction of the City of New York, Respondent.
    First Department,
    February 3, 1911.
    Civil service — power of Legislature to prefer veterans — removal of employee from classified position — review by certiorari — rehearing.
    
      It seems, that a veteran in the classified civil service should not be removed for a single act of negligence unless in the light of the attendant facts and circumstances it constitutes such a serious failure of duty as to show incompetency.
    The Legislature in recognition of the services to the State and to the nation performed by veterans may exempt them from removal from office except for incompetency or misconduct, shown after a hearing upon due notice upon stated charges, and may give a right of review by writ of certiorari.
    Charges which will justify the removal of a veteran in the classified civil service must be substantial, not trivial or technical, or showing a mere mistake of judgment without bad faith or evil purpose.
    The remedy by certiorari to remove such veteran extends not only to questions of jurisdiction, but to the sufficiency of the charges, the evidence and the weight or preponderance thereof, and to the question as to whether any rule of law affecting his rights has been violated to his prejudice.
    The court on certiorari to review the removal of such veteran may reinstate him and remit the matter to the board or officers whose determination is reviewed for further consideration, or for a rehearing which may be on the same charges, or on those and additional charges, where the determination removing him is based on the admission or consideration of incompetent evidence or other action prejudicial to his rights to a fair and impartial trial, and it is not intended to make a final determination of the charges on the merits.
    
      It seems, moreover, that without any direction in the order there maybe a rehearing on the same charges after the annulment of a determination removing an employee where the annulment is not upon the merits.
    If the trial be unfair or irregular to the prejudice of the employee through bias ■or otherwise, the determination will be reversed even though the charges be sufficient and there be evidence to sustain them, unless it be plainly required that they be sustained.
    If there be more than one charge and all have been sustained, and the punishment be so severe as to indicate that guilt on all the charges has been considered, the court will annul the determination and direct a rehearing when the guilt on one or more of the charges is not established by a preponderance of evidence.
    Where the mayor of the city of Few York notified the commissioner of correction of said city that an employee in his office must be forthwith brought to trial for purchasing certain articles at an excessive price and that h'c must be discharged unless the commissioner should show good reasons to the contrary, and it appeared that the employee, a veteran, having a good record for fourteen years, had in a single instance through neglect in failing to correct a requisition for the articles let the bill therefor go through to the comptroller at a price greater than that at which those actually furnished could be purchased in the open market, a new hearing will be ordered because a finding of misconduct was not warranted by the evidence, irrespective of whether the neglect of duty amounted to incompetency, and also because the action of the commissioner may have been influenced by the letter of the mayor.
    Miller, J., dissented.
    Certiorari issued out of the Supreme Court and attested on the 30th day of June, 1910, directed to Patrick A. Whitney, commissioner of correction of the city of Yew York, commanding him to certify and return to the office of the clerk of the county of Yew York all and singular his proceedings had in relation to the remoyal of the relator from the position of purchasing agent in the department of correction of the city of Yew York.
    
      George W. Olvany, for the relator.
    
      Theodore Connoly [Harry Crone with him on the brief], for the respondent.
   Laughlin, J.:

The relator is seventy-two years of age, and he entered the department of correction as a clerk, that being a position in the classified civil service of the city of Yew York, on the 10th day of February, 1896, after having passed a civil service examination. He continued in that employment until the 1st day of August, 1903, when he was appointed purchasing agent of the department after having likewise passed a civil service examination for that position, which was also in the classified civil service. During these fourteen years of service in the department of correction the relator has performed his duties diligently, fairly and honestly and has often been required to work overtime. His duties were onerous and so increased that for the year 1910 the commissioners, by including an item in the budget, asked for an assistant for him, which request, however, was not granted. He is an honorably discharged soldier of the Union army and was, therefore, b,y the express command of the Legislature exempted from removal from office, except for incompetency or misconduct shown after a hearing upon due notice upon stated charges, and with the right to such employee or appointee to a review by a writ of certiorari.” (Civil Service Law [Consol. Laws, chap. 7; Laws of 1909, chap. 15], § 22, as amd. by Laws of 1910, chap. 264.) Ho misconduct was charged or shown against the relator and the only charge made or shown bearing upon his competency ' is a single act of negligence. This court has repeatedly held that its authority to remove magistrates for cause does not warrant the removal of a magistrate for a single act of negligence. (Matter of Barlow, 141 App. Div. 640, and decisions therein cited.)

On certiorari to review the removal of members of the department of tire of the city of Hew York, it has also been held that a single error of judgment is not sufficient to warrant removal for incompetency. (People ex rel. MoCabe v. Fire Comrs., 43 Hun, 554; People ex rel. Croker v. Sturgis, 91 App. Div. 286,296.) In People ex rel. MoCabe v. Fire Comrs. (supra) the. court said:' “ The man is yet to come who, in all emergencies, has not blundered, whether he be lawyer, juror or judge, major-general, minister, governor, crowned head or president! And while the error committed has demonstrated that as to the particular subject a failure to deal with it properly could not be denied, it has not been regarded as evidence of incapacity to discharge the duties of the position held or to command. * * * A single error of judgment by him, assuming one to have been committed, * * * is not sufficient evidence of the relator’s incapacity to warrant his removal.” It is, of course, possible that a single negligent act in the light of the attendant facts and circumstances may constitute such a serious failure of duty as to show incompetency; but it is at least doubtful whether the neglect with which the relator was charged affords evidence of incompetency which would justify removal under the statute which we have quoted, and in the view we take of the case we do not deem it necessary to express a decided opinion on that point at this time. It was clearly competent for the Legislature' in recognition of the services to the State and to the nation performed by veterans, to enact this legislation to secure them in the positions which they occupy in the public service. The Legislature not only conferred the rights upon the veterans, but it has conferred authority and imposed the duty upon the courts of protecting them in these rights. It is to be borne in mind that this relator was entitled, not merely 'to the service of charges upon him and to an opportunity of explaining them, but to the service of formal and specific charges showing misconduct or incompetency upon his part and to a formal hearing thereon, and to the right to appear by counsel and to have the charges established by a preponderance of competent evidence. (People ex rel. Fallon v. Wright, 7 App. Div. 185 ; affd., 150 N. Y. 444; People ex rel. Brady v. O’Brien, 9 App. Div. 428; People ex rel. Mayor v. Nichols, 79 N. Y. 582; People ex rel. Ellett v. Flood, 64 App. Div. 209.) The charges must be substantial and not trivial or technical, or showing a mere mistake of judgment without bad faith or evil purpose. (People ex rel. Fallon v. Wright, supra ; People ex rel. Reardon v. Partridge, 86 App. Div. 310, 313; People ex rel. Schauwecker v. Greene, 96 id. 249 ; People ex rel. Howard v. Roosevelt, 15 id. 401; Matter of Koch, 91 id. 194.) The remedy by certiorari extends, not only to questions of jurisdiction, but to the sufficiency of the charges and of the evidence and to the weight or preponderance of the evidence, and to the question whether any rule of law affecting the rights of the relator has been violated to his prejudice. (People ex rel. McCormick v. Partridge, 95 App. Div. 323; People ex rel. O’Neill v. Bingham, 132 id. 667.) Where the ground upon which a determination removing a public officer or employee is annulled or reviewed by certiorari is the receipt or consideration of incompetent evidence, or other action prejudicial to the relator’s right to a fair and impartial trial, and is not intended as a final determination of the charges on the merits, which would preclude a rehearing thereof under pain of punishment for contempt, the court may reinstate the relator and remit the matter to the body, board or officer whose determination is under review for further consideration or for a rehearing, which may be on the same charges or on a renewal thereof, or on those and additional charges. (People ex rel. Moynihan v. Greene, 179 N. Y. 253 ; People ex rel. Moynihan v. McAdoo, 112 App. Div. 32; 116 id. 913; affd., 187 N. Y. 546 ; People ex rel. Classon v. French, 16 N. Y. St, Repr. 960 ; People ex rel. Reardon v. Partridge, supra; People ex rel. De Vries v. Hamilton, 84 App. Div. 369.) The court does not always direct a rehearing where the decision does not involve the merits of the charges (People ex rel. Fallon v. Wright, supra); hut doubtless, without any direction in the order, there may be a rehearing on the same charges after the annulment of a determination removing an official or employee, where the annulment is not on the merits of the charges. (People ex rel. McCormack v. MeClave, 29 N. Y. St. Repr. 368.) If the trial be unfair or irregular to the prejudice of the relator through bias or otherwise, the determination will be reversed, even though the charges be sufficient and there be evidence to sustain them, unless it is plainly required that they be sustained. (People ex rel. Moynihan v. Greene, supra; People ex rel. Fallon v. Wright, supra; People ex rel. Schauwecker v. Greene, supra; People ex rel. Croker v. Sturgis, supra.)

, If there be more than one charge and all have been sustained, and the sentence or punishment be so severe as to indicate that guilt on all charges has been considered, when guilt on one or more of the charges is not established by a preponderance of the evidence, the court will annul the determination and direct a rehearing on the charges as to which the evidence is sufficient. (People ex rel. Reardon v. Partridge, 86 App. Div. 310, 315. See, also, People ex rel. Classon v. French, supra.)

An examination of the charges and of the evidence, in the light of these principles, convinces us that the determination should be annulled. There is no express charge of incompetence or misconduct, and the letter notifying the relator that the charges had been sustained and that he had been removed indicates that the commissioner proceeded on the theory that the relator was only entitled to an opportunity to explain and not with a view to complying with the requirements of the statute relating to the rights of veterans, although at the commencement of the hearing the commissioner appears to have recognized the rights of the relator as a veteran. The formal specific charges served upon the relator are as follows : “ The Mayor of Mew York City has called my attention to a purchase made by you, which seems irregular, and charge is hereby made against you, the specification of which is: That, on or about March 25th, 1910, order was given by you to the Kenney Manufacturing Company for ‘ one dozen 1’ iron valve wheels at $1.50 each total $18.00 — and further that such wheels may be freely bought in the market for 6 cents apiece.” The commissioner of correction is appointed by the mayor for no definite term and is subject to removal when in the judgment of the mayor the public interests shall so require. (Greater N. Y. Charter [Laws of 1901, chap. 466], §§ 95, 694.) The mayor drew the attention of the commissioner to the purchase which became the subject of the charges by a letter dated on the 27th day of April, 1910, signed in his official capacity, the body of which is as follows :

“ Sir : The Comptroller calls my attention to a bill against your department dated March 25th by the Kenney Manufacturing Company for one dozen 1-^ iron valve wheels at $1.50 each, total $18.00. He has sent out" in the market and is able to buy them freely at 6 cents apiece. Yon will please forthwith put on tidal the purchasing agent J. C. Long, and the prison warden Peter A. Mallon who certified to the correctness of the order and the bill, and dismiss them from the department summarily unless you can bring to me some good reason to the contrary.

“ The thing seems to be very scandalous, and I am not able to perceive the slightest excuse for it. Anyone looking at the little iron wheel about four inches in diameter would know that it could not cost $1.50. Meanwhile I shall expect you to look over your entire department and see if such things are not occurring everywhere. Such .miserable thievery has to be got rid of in some way.

“ Very truly yours.”

This official communication left no discretion to the commissioner. He was not at liberty to investigate the matter and to then take such action as the facts might warrant, but he was commanded to put the relator on trial forthwith and as might be expected he proceeded to do as directed. On receipt of this letter from the mayor he immediately suspended the relator and prepared and served formal charges on him the next day which charges were necessarily triable before himself. The charges were based on the mayor’s complaint. The facts developed on the hearing clearly show that there was no thievery in connection with ordering this material and there was nothing to give rise to a scandal, although doubtless as the matter was presented to the mayor the inferences which he drew in that regard then seemed warranted and he was actuated by the com•mendable desire to stamp out dishonesty in the public service. Had the mayor known all the facts and the relator’s record both in the municipal service and in the service of the nation it is not probable that he would have thus peremptorily directed that the relator be placed on trial with a preconceived determination to remove him. The respondent not only alludes to the communication from the mayor in the formal charges which he made against the relator, but he attaches the mayor’s letter to and makes it part of his return, and with respect thereto states that he received this written complaint from the mayor and preferred “ charges of irregular purchases in violation of the rules of the department ” against the relator and caused a copy thereof together with specifications to be served upon the relator, “notifying him that he would be allowed an opportunity to make an explanation in regard to said charges * * *. Copies of which aforesaid written complaints and of said charges together with the specifications and notice of opportunity to explain are hereto annexed, made a part hereof and marked respectively Schedules ‘A,’ £ B,’ and £ C.’ ” Said Schedule “ A ” was the mayor’s letter.

It might well be expected in the circumstances that the letter from the mayor would influence the action of the commissioner to the prejudice of the relator and we are of opinion that it did, for it is improbable that a veteran with the record and experience of the relator would have been removed under charges involving, in a sense, his integrity for a single error in the performance of his duty as disclosed by the evidence. The respondent, so far as the record discloses, conducted the trial with perfect fairness, but it is probable in view of the peremptory order of his superior officer that he thought that a removal was required on proof of the fact that the relator gave the order.

The relator had charge of purchasing material and supplies for the department and on March 3, 1910, he received a'requisition in writing from the general storekeeper, duly certified by the warden of the Fourth District Prison, for the purchase of one dozen one and one-half iron valve wheels for use on "one and one-half Globe valves, it being stated in the requisition that they were “ to repair Kenney Flushometer” by substituting the iron valve wheels in place of handles. With the requisition he received a letter addressed by the warden to the commissioner referring to the -requisition and stating that it was “ for a supply of iron valve wheels to be substituted for broken off handles on ‘ Kenney Flushometer closets at Fourth District Prisons.5 ” Relator knew that the Kenney Flushometer was a patented article and who furnished it. He telephoned to the Kenney Manufacturing Company, which controlled the patent, with a view to obtaining information, and this resulted in Mr. Barnum, the manager of the company, coming over to relator’s office. The relator showed him the requisition, and Barnum stated, in subtance, that his company put in the flushometers at all the prisons and that the handles were nickel plated ; that all attachments used on these flushometers were nickel plated; and that iron valve wheels were never used 'and that the warden evidently wanted the same attachments as had been originally put op but had made a mistake in making out the requisition; that a shaft with attachment nickel plated, known as a Tee handle was what had been originally supplied and was in use at the prisons. On returning to his office Barnum had a formal communication in writing sent to the relator stating that the price of Tee handles for their prison style flushometer would be one dollar and fifty cents each. The relator assumed on this information from Barnum and without further inquiry that the warden desired handles to replace the broken handles referred to in his letter and of the same character as those which had been broken, as to which he relied on Barnum’s statement, and without further inquiry or communication with any one he gave a formal order to the Kenney Manufacturing Company to furnish the material at one dollar and fifty cents for each valve wheel; and in writing the order he followed the requisition as it came to him and left it one and one-half dozen iron valve wheels, expecting that the order would be filled with the nickel-plated Tee handles as agreed upon between them and as that was the only kind of attachment used in connection with the flushometers. There is evidence tending to show that he understood that nickel-plated wheel valves would be furnished, but Barnum intended to furnish “ Tee ” valves. The matter was not again brought to his attention until he was suspended. The material was not required to be delivered to the relator and it was not his duty to inspect it. It was the duty of the storekeeper to see that the material received and accepted corresponded with the requisition. It appears that the warden in fact desired iron valve wheels as stated in his requisition, and the Kenney Manufacturing Company, without the knowledge of Barnum, on ascertaining this after receiving the order, purchased and supplied iron valve wheels which it purchased for fifteen cents each and it would not have charged the city over twenty-five cents each for the valve had it not been for the oversight in letting the bill go through at the original figures. ¡Neither the requisition nor the order, however, was changed and in due course the bill reached the comptroller for audit at eighteen dollars, the figures as filled in by the relator, and the mistake was discovered by an employee of the comptroller’s office whose duty it was to pass on the bills. The relator had no relations with any one connected with the Kenney Manufacturing Company and he had never before met Mr. Barnum. There is not the slightest ground even for suspicion with respect to the honesty of his motives in making out and giving the order in this manner without inquiry of the warden, or changing it to conform to the material that he understood would be supplied. He concedes that he made a mistake in not writing in the letters “ N. P. ” which would have indicated that the valves should be nickel plated, but he excuses his omission on the ground of volume of work on hand.

The return shows'that the respondent found the relator guilty as charged and since it also shows that the mayor’s letter constitutes part of the charges it is left open to the inference that he has found relator guilty on the ones specified in that letter as well as those specified in his formal charges although doubtless such was not his intention. In his letter dismissing the relator the respondent states that he has found that the charges are sustained and that the relator has been “ guilty of misconduct, neglect and incompetency,” and he then specifies the acts constituting the misconduct, neglect and incompetence, as, issuing the order for iron wheels after he had arranged with Barnum to supply nickle-plated wheels without consulting with the warden who had made the requisition, and at one dollar and fifty cents each, when iron wheels could have been purchased at from six to fifteen cents each. As already observed, there was here no misconduct, and the determination that the relator was guilty of misconduct is not warranted by the evidence. It may be that the respondent would have removed the relator even if he had not deemed him guilty of misconduct, but this does not definitely, appear. We only know that the relator has been erroneously adjudged guilty of misconduct, and, therefore, as already observed, we do not deem it necessary to decide whether the charges with respect to neglect of duty and the evidence relating thereto would be sufficient to sustain a removal of the relator on the ground of incompetence, for this record discloses a state of facts on which the relator did not have a fair and impartial hearing on that specific charge alone.

It follows, therefore, that the writ should be sustained, the determination of the commissioner annulled, and the relator reinstated, with fifty dollars costs and disbursements.

Inoraham, P. J., Clarke and Scott, JJ., concurred; Miller, J., dissented.

Writ sustained, determination of commissioner annulled, and relator reinstated, with fifty dollars costs and disbursements. Settle order on notice.  