
    The People of the State of New York ex rel. Frederick S. Schlesinger, Appellant, v. Robert W. De Forest, Tenement House Commissioner of the City of New York, Respondent.
    
      Civil service — dismissal of an a/rchitectural draughtsman, without a hearing, after the expiration of the probationary period.
    
    In April, 1902, Frederick S. Schlesinger passed an examination held by the civil service commission in the city of New York for the position of architectural draughtsman. His name was certified for that position to the tenement house commissioner, who directed him to report for duty on August 1,1902. Schlesinger reported for duty on that day, but was, by mistake, assigned to a clerical position. The mistake was discovered August 20, 1902, and the tenement house commissioner thereupon requested the civil service commission to certify Schlesinger’s name to him as eligible to the position of architectural draughtsman nunc pro tunc as of August 1, 1908, in order that he might appoint him to that position.
    The civil service commission certified Schlesinger’s name, and on August 27, 1902, the tenement house commissioner appointed Schlesinger to the position of architectural draughtsman, stating that the appointment was to take effect on August 1, 1902. Schlesinger was paid for his services as architectural draughtsman for the entire month of August, 1902.
    December 2, 1902, the tenement house commissioner, acting on the assumption that Schlesinger’s probationary term of three months had not expired, discharged him without assigning any reason therefor or giving him an opportunity for a hearing.
    
      -Held, that Schlesinger’s discharge was unlawful;
    
      That, -whether his appointment dated from the first of August or from the twenty-seventh of August, his probationary term had expired prior to his discharge, and that he could he lawfully discharged only in the manner provided by rule 42 of the municipal civil service rules.
    Appeal by the relator, Frederick S. Sclilesinger, from an 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 2lth day of February, 1903, denying the relator’s motion for a peremptory or alternative writ of mandamus requiring the respondent to reinstate the relator as architectural draughtsman in the tene- ' ment house department.
    
      Jacob F. Miller, for the appellant.
    
      William B. Crowell, for the respondent.
   McLaughlin, J.:

In April, 1902, Frederick S. Sclilesinger passed an examination held by the municipal civil service commission for the position of architectural draughtsman and on the twentieth of that month his name was certified to Robert W. De Forest, tenement house commissioner of the city of New York, for such position, at a salary of $1,200 per year. Shortly thereafter De Forest, as such commissioner, wrote Sclilesinger that his name had been certified for the position named and requested him to call at the office of the department with reference thereto. Sclilesinger at the time this letter was written was absent from the State, but immediately upon his return he called as requested and had a conversation with the chief clerk of the department, who told him to report at the office on the first of August, when he would be put at work. He did as directed and by mistake ivas assigned to a clerical position, in which he performed services until about the twentieth of August, when the mistake was discovered, and in notifying the municipal civil service commission of that fact the tenement house commissioner said : “ I am in need of an architectural draughtsman and would be glad to appoint Mr. Sclilesinger to this position if you will certify his name to me. As he has been serving the City since Aug. 1st, it would seem to me appropriate that you should certify him ‘ nunc pro tunc ’ as of July 31st, so that 1 may appoint him to take effect Aug. 1st.” On the twenty-sixth of August the municipal service commission answered the letter, saying: In response to your requisition of August 20th, for an eligible list from which you may appoint one architectural draughtsman, I beg to certify the following : * * * Fred S. Schlesinger, 157 East 51st Street, New York, * * On the following day the tenement house commissioner wrote the municipal civil service commission, saying : I beg to notify you of the following appointment to the service of the Tenement House Department: Fred S. Schlesinger, 157 E. 51st St., New York City, architectural draughtsman. Salary, $1,200 per annum. This appointment to take effect August 1st, 1902.”

Schlesinger continued in the employ of the city until December second, when he was discharged without any charges having been preferred against him, or an opportunity having been given him to make an explanation. He thereafter made a motion for a mandamus to compel the tenement house commissioner to restore him to his former position, upon the ground that his discharge was illegal. The motion was denied and he has appealed.

We are of the opinion that the motion should have been granted. The rules prescribed by the State and municipal civil service commissions, made in pursuance of the statute, have the force and effect of law (Laws of 1899, chap. 370, § 6, subd. 1), and section 8 of the statute cited (as amd. by Laws of 1902, chap. 270) provides, among other things, that all appointments or employments in the classified service shall be for a probationary term not exceeding the time fixed in the rules. Rule 35, adopted by the municipal civil service commission of the city of New York, provides that Every original appointment to, or employment in, any position in the competitive class shall be made for a probationary term of three months, except in Schedule C, where the term shall be for one month, and an appointing or nominating officer, in notifying a person certified to him for appointment or employment, shall specify the same as for a probationary term only; and if the conduct, capacity and fitness of the probationer are satisfactory to the appointing officer, his retention in the service after the end of such term shall be equivalent to his permanent appointment; but if his conduct, capacity or fitness be not satisfactory he may be discharged at the end of such term without regard to the provisions of Rule 42, limiting the power of removal. * * *.” Rule 42 referred to provides for charges to be made as follows : “To secure compliance with the provisions of the Civil Service Law prohibiting removals because of political opinions or affiliations, no removal of any person in the classified service of the City of New York shall be valid unless and until a statement of the causes of such removal shall be filed with the Municipal Commission, and a copy of the same furnished to the person sought to be removed, and until such person has been afforded an opportunity to present an explanation in writing. * * *.”

The respondent contends that upon the facts hereinbefore stated the- relator was legally discharged under rule 35, that is, at the end of his probationary term of three months, and that there was, for that reason, no necessity of filing a statement of the causes of such removal with the municipal commission, or of giving the relator an opportunity to make an explanation. The real question presented, therefore, is whether the relator was discharged within three months of the time when he first commenced to perform services for the city under his appointment as architectural draughtsman, and we do not see how any one could suppose there could be more than one answer to this question. His name was certified to the tenement house commissioner as a proper person to be appointed to the position of architectural draughtsman on the twenty-sixth of August; on the following day the appointment was made, to take effect as of August 1, 1902—of which fact the civil service commission was notified — and the relator thereafter rendered services for the city in that capacity. Not only this, but he was paid for the entire month of August for services rendered as architectural draughtsman and the respondent certified, as appears from the certificate attached to the payroll for that month, that he was employed “ solely in the performance of the appropriate duties” of such position. He was not discharged until the second day of December, so that if it be conceded that his appointment only dated from the twenty-seventh day of August, it does not aid the respondent, because the discharge was not made within three months of the time of the appointment and it, therefore, became permanent under rule 35, and he could only be discharged in the manner provided in rule 42. It is not claimed that rule 42 was complied with, and for that reason the relator must be reinstated in his former position and his application tor a peremptory writ of mandamus to accomplish such result should have been granted.

The order appealed from, therefore, must be reversed and the writ granted, with fifty dollars costs and disbursements.

Yah Brunt, P. J., Patterson, Ingraham and Laugi-ilin, JJ., concurred.

Order reversed and writ granted, with fifty dollars costs and disbursements.  