
    The People of the State of New York ex rel. Earl H. Gallup, Respondent, v. Clark Williams, as Comptroller of the State of New York, Appellant.
    Third Department,
    June 29, 1910.
    Civil service — mandamus — removal of employee — political reasons — evidence — good of service — conversations as to cause — determination of Civil. Service Commission — letters.
    The State Comptroller lias power to remove an employee in liis office for any cause other than political considerations.
    Where a civil service employee seeks reinstatement- "by mandamus on the ground that his removal was in violation of section '25 of the Civil Service Law,' the only issue is whether he was removed for political reasons.
    
      In such a proceeding where the Comptroller who removed the relator is dead, -it is error to exclude evidence offered by the defendant to show that the relator, a young man without experience, was placed at the head of a department in a preceding administration without due consideration of the faithful services of thos.e who outranked him in experience and knowledge. So, too, it' is error to exclude evidence showing that such advance was detrimental to the service, and what duties attached to the position, and what measure of skill and experience -were necessary for one to fill the position properly, especially so when-defendant’s counsel has stated that he is not trying to attack the validity of the appointment'.
    Such evidence tends to show that the removal was not made for political reasons.
    Where relator’s case rests principally on his own testimony as to conversations with the deceased Comptroller, it is error to exclude the reasons for the removal given by the Comptroller to a third party, a friend of the relator.
    A determination by the Civil Service Commission that the removal was made for political reasons cannot be considered by the jury. It is error to receive in evidence a letter setting forth such determination.
    The defendant had the right to place before the jury every fact with reference to the duties of the office from which the.relator was removed and the manner of his appointment and removal.
    It is error to exclude a letter written by the deceased Comptroller to the Civil Service Commission wherein he requested it to provide for filling the vacancy; informed it of the importance of the position, arid of the fact that one of the employees, a man of large experience, was the only one competent to discharge the duties satisfactorily, and wherein he expressed the hope that for the good of the service the rules would permit the appointment of such employee.
    It was also competent to show that the employee recommended by the Comptroller for the vacant place has performed' the duties of the relator since his removal. i
    Appeal by the defendant, Clark Williams, as Comptroller, etc., from a final order and judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Albany on the 20th day of January, 1910, upon the verdict of a jury rendered after a trial at the Albany Trial' Term.
    The relator applied for a peremptory writ of mandamus requiring the State Comptroller to reinstate him in the position of chief clerk of the transfer tax bureau in -his office, from which position he was removed April 10, 1909, as he alleged, on account of his political opinions and affiliations, in violation of section 25 of the Civil Service Law The defendant denied the removal was for political reasons, and alleged that it was solely because the relator was not of sufficient experience to properly perform the duties of the position, and was not personally in accord with the Comptroller and not a proper person to fill an office the confidential relation of which was so close, with effectiveness or harmony, and. denied that the relator was willing and able to perform the duties of the position, and alleged that the best interests of the department requires and will be promoted by the absence of the relator therefrom. The issues thus raised were brought to trial before the court and a jury. The question submitted to the jury was whether the relator was removed from his clerkship on account of his political opinions or affiliations, which the jury answered in the affirmative.
    
      Edward R. O'Malley, Attorney-General [Franklin Kennedy, Deputy, of counsel], for the appellant.
    
      Lewis E. Carr, for the respondent.
    
      
       Consol. Laws, chap. 7 (Laws of 1909, chap. 15), § 25.— [Rep. .
    
   Kellogg, J.:

The determination of the jury rests solely upon the evidence of the relator that the Comptroller and his deputy informed him, in substance, that his place was wanted for political reasons, but he might serve thirty days longer, and that at the end of said thirty days he was removed, and the relator detailed some of the duties of his office. The defendant sought to show that the relator, a young man without experience in the business of the department, without any particular reason, was brought into the Comptroller’s office by the Democratic predecessor of the Republican Comptroller, Gaus, and was placed in a position over men who had faithfully served in the department, and who had in fact had to assist and instruct him in the performance of his duties, and that his promotion to the clerkship from which Comptroller Gaus removed him was made without due consideration of the faithful service of men who had been in the office for a long time, who ranked higher than the relator in experience and knowledge of the duties of the position, and that such undue advancement of a person without experience tended' to demoralize the force and had a prejudicial influence throughout the Comptroller’s office, and .attempted to show in detail the duties and skill and experience winch were required of a.man to properly till the position from • which the relator was removed. This evidence was rejected, apparently for the reason that the defendant had admitted that the relator was duly appointed, notwithstanding the fact that the defendant’s attorney explained that they were not ’ attacking the validity of the appointment but were simply seeking to show that the appointment was made in an extraordinary manner, not upon merit, and' that by leaving the relator in a position to which he was- appointed in such a manner over his superiors in the service was detrimental to the service. The evidence offered had a tendency to show that the removal was madb for the .supposed ■ interest of the service, and was not for political purposes.

The relator sent his friend Fuller to the Comptroller, apparently before the-removal, to intercede for him, and the defendant sought • to show the conversation that took place between Fuller and the • Comptroller, and the reasons which the Comptroller advanced for desiring to remove the relator, and that these statements were communicated by Fuller to the relator. This evidence was excluded. ' Inasmuch as tlie relator had sworn in detail as to the reasons given by the Comptroller, and as his case rests entirely upon such statement, not Only as bearing upon the real cause of the removal but also as bearing upon the relator’s understanding of the real cause, it was proper to show what reasons the Comptroller assigned tq Fuller for the removal about to take place, and which Fuller communicated to the relator. ' ' '

The relator was permitted, over defendant’s objection, to put in • 'evidence a letter written by him to the Comptroller-asking his reinstatement, in which letter he recited that the Civil Service Commission had made a report in which it found that relator’s removal was for political reasons in violation' of section 25 of the Civil Service Law, '.and relator’s counsel, in summing up, referred to this letter and commented upon it, claiming that the evidence showed that the Civil Service Commission had already determined that .the removal was for political reasons. The defendant requested the court- to direct the jury to disregard the statements of the relator’s counsel with reference to such report and finding by the Civil Service Commission, which the court declined and the defendant excepted. At. the close' of the charge the relator’s counsel asked the court ■ to charge that the jury may take into consideration the contents of that letter, which the court charged, and to which the defendant excepted. The determination of the Civil Service Commission was not a proper matter for the consideration of the jury, and it is probable that the defendant was prejudiced by the receipt in evidence of the letter and the prominence given to it by the discussion between the counsel and the court and the action of the court thereon.

The sole issue was whether the relator -was removed for political reasons, and any fact or circumstance properly bearing upon that matter was proper for consideration. It is not seriously disputed that the Comptroller had the power to remove the relator from his position for any reason which to the Comptroller might seem to make a change desirable, except for the reason prohibited, by section 25 of the Civil Service Law. The Comptroller might come to a wise or an unwise conclusion ; reason logically or illogically ; there might or might not be adequate cause or reason ; the act might be just or unjust towards the relator; nevertheless the power of removal rested with the Comptroller, and he was unhampered except that he must not remove for political reasons. Any and all other reasons, good or bad, which might actuate him, are beyond the reach of the Civil Service Law. The Comptroller who made the removal is dead, and we can only ascertain his motives by a consideration of all the facts. The defendant has the right to place before the jury every fact- with reference to the duties of the office, the manner of the appointment and the removal of the relator. He could not, however, question the fact that relator was legally holding office up to the time of his removal. Many matters urged by the defendant were excluded - over his exception ; it was necessary for the jury to understand them in order that it might intelligently determine whether the relator was removed for political reasons or whether the action rested upon some other cause' or ■ reason.

The appointment of the successor to the relator probably was in the mind-of the removing officer at the time, and must have entered somewhat into the reasons for the removal. The relator was removed April tenth ; April fourteenth the Comptroller by letter notified the Civil Service Commission of the vacancy and requested it to provide for filling the same. He informs it of the importance of the position, and some of the duties attached to it, and then recites that Hr:' McElroy, a practicing attorney of. twenty-five years standing, assistant chief clerk of the transfer tax' bureau for eight years, who had acted as special surrogate for six years, is the only employee in the department competent to take the responsibility and efficiently and satisfactorily discharge the. duties of the position, and he hopes for the good of the service that the rules will permit and' that favorable action will enable the Comptroller to appoint Mr. McEh’oy to the vacancy. This letter was rejected. I think it was so far a part of the removal that it had • some bearing upon the question ■whether, the relator was removed for political reasons.’ It showed at least that the- Comptroller, now deceased, knew that the Civil Service Commission and not. himself must provide for filling tlrp vacancy, and that he thought the duties of the position were of great importance and required a man of great experience, and that no one in that ■ office except Mr. McElroy was really capable, of satisfactorily discharging its duties. It carries with it the inference that perhaps the removal had in view the substitution of Mr. McElroy in the relator’s place.

At the time of the removal did the Comptroller desire to put Mr. McElroy in the position, then occupied by the'relator ? Was. the desire to remove.and the desire to appoint McElroy a continuous act, or "were they relatedand, if so, was the removal because one was a Democrat and the other a Republican, or was it for" other reasons, perhaps a mere matter of preference, perliaps a feeling that one was more deserving than the other by reason of previous service, perhaps for some other good reason, and perhaps, for no logical reason at all. This letter had a bearing upon the question. The request that the Civil. Service Commission fill the place, and the Comptroller’s recommendation of McElroy, were facts which had a bearing upon the state of mind of the Comptroller when the removal was made. They certainly deserve to be considered by the-jury..

It \yas also competent to show that Mr. McElroydiad performed the duties of chief clerk since the removal of the relator, arid that he had filled the position since the relator’s removal. This bore upon the general question before ■ the jury, and alsb fended to establish the entire familiarity of Mr. McElroy with the duties of the position.

The judgment and final order should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred. ..

Judgment and final order reversed and new trial granted, with costs to appellant to abide event.  