
    The People of the State of New York ex rel. Alexander M. Ross, Appellant, v. John T. Dooling and Others, Commissioners, Composing the Board of Elections of the City of New York, Respondents.
    Second Department,
    April 23, 1909.
    Mandamus—trial of issues on alternative writ — direction of verdict — dismissal of alternative writ — setting aside verdict — civil service — veterans — waiver of right to hearing.
    On the trial of issues raised by an alternative writ of mandamus the Trial Term. may direct a verdict when requested by both parties.
    But the Trial Term cannot make an order dismissing an alternative writ, for the practice upon trial is analogous to equity procedure in framing issues and the final disposition is with the Special Term.
    Although the court on a trial of issues raised by an alternative writ has directed a verdict it may set the same aside; but if the case presented a question for the jury, a new trial-should be granted.
    
      A veteran volunteer fireman in the civil service whose removal is sought may ' waive Ms statutory right to a notice and hearing. Thus, he may waive it by a failure to assert his claim as such veteran where his status has not already been brought to the knowledge of the officer having the power of removal.
    Mandamus to compel the reinstatement of a chief clerk in a borough bureau of the board of elections of the city of New York, he claiming that being a veteran, he had been removed without notice and hearing. On all the evidence, held, that the question as to whether the relator had waived his right to a hearing should have been left to the jury, and that a dismissal of the writ was error.
    Appeal by the relator, Alexander M. Boss, from a final order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Biclunond on the 4th day of February, 1909, dismissing an alternative writ of mandamus as a matter of law, and also from an order made at the Kings County Trial Term and entered in the office of the clerk of the county of Biclunond on the 10th day of December, 1908, setting aside the verdict of a jury on a special question submitted to them and dismissing an alternative writ of mandamus as a matter of law.
    
      George M. Pinney, Jr. [Warren C. Van Slyke with him on the brief], for the appellant.
    
      Theodore Connoly [Royal E. T. Riggs and Francis K. Pendleton with him on the brief], for the respondents.
   Jenks, J.:

The relator was removed from his chief clerkship in a borough bureau of the board of elections of the city of Hew York. He applied for a writ of mandamus. . An alternative writ was issued and tried before a jury. Each side moved for a direction of a verdict. The court submitted one question to the jury: “Did the relator, Alexander M. Boss, ivaive his rights to charges and a hearing under section 21 of the Civil Service Law at the time of his removal from the position of chief clerk of the Biclunond Borough office of the Board of Elections of the City of Hew York ? ” This was answered in the negative. In addition, and by direction of the court, the jury returned a verdict that the relator was a citizen of the United States and a resident of the county of Biclunond, and on the 29th day of February, 1908, was a veteran volunteer fireman of and in a volunteer fire department of that county; that he; was removed and dismissed from his position on the 29th day of February without a hearing upon due notice upon stated charges, and without being served, with or receiving any charges of misconduct or incompétency; that on the 20th day of April, 1908, he served on or caused to be delivered to the respondents a formal notice and protest against his dismissal and removal, on the ground that he was a veteran volunteer fireman and so could not be removed by the proceedings theretofore had, in that it' was a direct violation of and was prohibited by section 21 of the Civil Service Law of the State of New York. The court thereupon directed a verdict for the relator, but later, and on motion of the defendants, it set aside the verdict, of the jury, in that the facts as matter of law constituted a waiver of relator’s rights as a veteran volunteer fireman under section 21 of the Civil Service Law, and dismissed the writ as a matter of law Bind not in the exercise of discretion. The relator appeals from this order. Thereafter the defendants moved for a final order of dismissal at the Special Term, and that Special Term referred the motion to the Special Term held by the learned judge who had presided at the Trial Term. The Special Term made an order dismissing the alternative writ on the merits as a matter of law. This order contains a recital of the said disposition of the case at the Trial Term. The relator also appeals from that’ order. . •

The court at Trial Term had the right to direct á verdict, inasmuch as a direction ivas requested by both parties. (People ex rel. Gleason v. Scannell, 172 N. Y. 316.) But I think that the court át Trial Term had.no right to make an order dismissing the writ inasmuch as the practice upon the trial of an alternative writ is analogous to the equity procedure of framing issues, áñd hence the final disposition was with the Special Term. (People ex rel. Bean v. Clausen, 74 App. Div. 217; People ex rel. Geraci v. Italian Assn. St. Bartholomew, 123 id. 277.) Although the leained court originally directed a verdict in favor of the relator, it did not thereby shear itself of power to set aside the verdict, but if the case presented a question for the jury the court upon setting .aside the verdict 'should have granted a new trial. :

Aside from the question, of practice, I think that the question of waiver in this case was for the jury. As one may waive a statutory right (Sentenis v. Ladew, 140 N. Y. 463), the doctrine of waiver is applied to an appointee or employee in the public service who is protected from removal by a statute of prescribed procedure. Certainly if such an one has notice of .a contemplated removal in disregard of the statute and his status under the statute has not been brought to the attention of the removing power and is not then or thereafter brought to its attention before the action of removal, then the doctrine of waiver will apply. And so this doctrine may Well be held to apply when the appointee or employee becomes aware of an intent of removal by an ignorant removing power, and yet fails thus to enlighten that power. The cases of People ex rel. Robesch v. President, etc., (190 N. Y. 497) and People ex rel. McDonald v. Clausen (50 App. Div. 286), chiefly relied upon in the opinion of the court at Trial Term, did not directly involve a question of waiver. In the former case the relator had notice and attended at a hearing upon charges of negligence, and neither then nor before informed the removing power of his statutory protection, so that case turned upon the sufficiency of notice of the statutory protection as given by a certain certificate theretofore filed in the department. In the latter case the respondent was vested with the power of removal and the question was whether he received notice of the veteranship of the relator. The court held that a mere incidental remark to a park commissioner, many years before he was in office, in relation to the fact that the relator had been in the army, was not sufficient to bring home to such person as park commissioner notice that the relator was a veteran honorably discharged the' service.

In the Robesch case, however, the court, per Willard Bartlett, J., said that there was a well-established rule that if the appointee or employee becomes aware of the intention of his superior to take steps to remove him, it is incumbent upon such an one to make known to his superior the fact that he claims to be a veteran soldier, sailor or fireman if he desires to avail himself of it, unless his status has been already brought to the knowledge of the superior officer vested with the power of removal. In the case at bar the learned court applied this rule to the feature of waiver, and decided that as matter of law the relator had waived his statutory protection. The correctness of that conclusion must be tested by the single interview held between the relator and the president of the .board of elections ; for although the latter testifies that there were two interviews, the relator positively asserts that there was but one. The relator testifies that he called at the private office of the president of. the board, and said to the individual who was then president of the board, that he understood from the latter’s private secretary that he desired relator’s resignation; the answer was, “ Yes, have you got it with yon?”, The reply was, “No, sir, I have not,' and I don’t intend to resign.” The relator then asked if the board made the request or “if there was any reason why he should demand my resignation.” The answer was, “As far as the board is concerned, that has nothing to do with it; this is a matter between us, you understand, Mr. Boss, there have been changes in the leadership down in your borough and in politics we must expect this kind of thing.” The relator answered that he had been ten years in the department and did not expect this kind of thing, that he would not resign, and that “ if he desired me to be removed it would have to be on written charges and a hearing before the board.” The answer was, “You better think this-matter over and let me have your resignation.” The reply was, “I will,not resign and cannot be removed except on charges. My record is clear.” The rejoinder was, “All right, you are the doctor.” The relator, on-cross-examination, also testifies that the president “may have said that if I did not resign I would be. removed, and 1 said, ‘ You cannot remove me, except on charges and a hearing before the board.’ ” The president testifies, “ No one suggested to me the removal of Mr. Boss before February 29th,. 1908. His removal was out of my own head. I did not make any charge of any kind against him, the record shows that I did not, * * * No one suggested to me before February, 1908, that I should ask Mr. Boss to resign.” I think it could not be said that there was such waiver as matter of law. The superior officer ” of the relator, vested with the power of removal, was the board of elections composed of four membérs. (Election Law [Laws of 1896, chap. 909], §11, subd. ¶¶ 2, a, h, added by Laws of 1901, chap. 95.) The jury could have found that only the individual who was president of the board sought to obtain the resignation of the relator. At that time he avowedly had no authority from the board even to ask for a resignation. He did not pretend that the board contemplated a removal as the alternative. He did not assert that there was any-ground of removal; on the contrary, he gave as reasons for resignation matters which were entirely extraneous to any shortcomings of the relator. The relator testifies that the president of the board expressly excluded the board' itself, saying that it had nothing to do with the case. Incident to the individual was his potentiality as an official. Even if that individual did say that if the relator would not resign he would be removed, it could be inferred that the relator might understand such utterance but as the expression of intention to persuade the board to remove him. But even so, that was far from the expressed intention of the superior officer to proceed to a removal. Moreover, the relator did not stand mute; he asserted that lie would not resign, and that he could not be removed except upon written charges and a hearing before the board. This was an explicit statement of his rights. True he did not specify that his protection was by virtue of his. status as a veteran fireman, nor did he cite the statute, but we are now considering the evidence of a waiver, not of the sufficiency of a notice. Although the question of waiver may be disposed of as a matter of law (Ocumpaugh v. Engel, 121 App. Div. 9), yet when different inferences are permissible the question is one of fact. (Sheehan v. Board of Education, 120 App. Div. 557; Fox v. Harding, 7 Cush. 516, 520.)

I advise that the order of the Special Term be reversed .and the order of the Trial Term be modified, so as to provide for a new trial, andas so modified it be affirmed, all without costs.

Woodward, Gaynor, Burr and Rich, JJ., concurred.

Final order of the Special Term reversed and order of the Trial Term modified so as to provide for a new trial, and as so modified affirmed, all without costs. 
      
       See Laws of 1899, chap. 370, § 21, as amd. by Laws of 1904, chap. 697.- [Ref.
     
      
       61 Misc. Rep. 358.— [Rep.
     
      
       See Laws of 1901, chap. 536.— [Rep.
     