DIGEST OF COURT DECISIONS BUFFALO RULES OF CIVIL SERVICE COMMISSION - ELIGIBILITY FOR EXAMINATION FOR PROMOTION IN POLICE DEPARTMENT. The municipal Civil Service Commissioners of the city of Buffalo had power to adopt a rule that as a condition of elegibility to enter a promotional examination in the police department, the person desiring promotion must have been continuously employed for the specified period of twelve months immediately preceding such examination in a next lower position, the duties of which are such as would naturally and properly tend to fit him for the duties of the position to which he seeks promotion. Such rule is not contrary to a rule adopted by the common council providing that vacancies in the positions of captains and lieutenants shall be filled by appointment of a member of the force, for such rule does not mean that all members of the force are entitled to take the examination but only such as are permitted to do so under reasonable rules promulgated by the Civil Service Commission. Moreover, the Civil Service Commission is not required to adopt the classification made by the common council, although the government and discipline of the police department is to be prescribed by said council. (People ex rel. Kennedy v. Feldman, 179 App. Div. 295. See also People ex rel. Riordan v. Feldman et al, 221 N. Y., affirming an order which reversed an order of the Special Term granting a motion for a peremptory writ of mandamus to compel defendants to accept relator's application to take part in a certain examination for the position of captain in the police deartment of the city of Buffalo.) Application of Detective Sergeant for Position of Captain Denied The application of a detective sergeant to enter the examination for the position of captain, without having been a lieutenant should be denied. (People ex rel. Kennedy v. Feldman, 179 App. Div. 295.) Right of Patrolman Detailed as Desk Sergeant to Take Examination for Promotion But a patrolman who has been detailed as a desk sergeant and who has not been doing patrol duty immediately preceding the examination, should not be deprived of his right to take the examination for the promotion to which he would have been entitled if he were doing patrol work, and a rule excluding desk sergeants is invalid. (People ex rel. Kennedy v. Feldman, 179 App. Div. 295.) Civil Service Law Amendments Section 21a. Retiring Veterans of the late Civil War and granting them pensions. Amended by Laws of 1917 Chap. 768 in effect June 6, 1917. Section 23a. Removal for treasonable or seditious acts or utterances. Added by Chap. 416 of the Laws of 1917 in effect May 8, 1917. Section 30. Person employed by take and file Constitutional oath. in effect May 19, 1917. State or its civil divisions and cities to Section 46. Establishment of a system of service boards and ratings. Added by Chap. 653 of the Laws of 1917 in effect May 25, 1917. Section 47. Establishment of departmental personnel boards. Added by Chap. 653 of the Laws of 1917 in effect May 25, 1917. Section 13 (1) as Amended by Chapter 352 of the Laws of 1913- Deputy County Clerk not in Exempt Class 1. Under section 169 of the County Law, as amended by chapter 345 of the Laws of 1915, a deputy County Clerk possesses the same power and authority as the clerk at any sitting or term of the court which he attends with respect to the business thereat, but when he is assigned to act as a court clerk he does not act as a County Clerk generally and is not included within the Exempt class of the Civil Service Law, section 13 (1), as amended by chapter 352 of the Laws of 1913, which provides that the Exempt class shall include the deputies of principal executive officers authorized by law to act generally for and in place of their principals. (Matter of Meahl v. Ordway, 98 Misc. Rep. 394.) Section 13 (3) Exemption under- Who not Included 2. The fact that the Supreme Court when sitting in a county is held in several parts to each of which a special deputy clerk is assigned does not make them exempt under section 13 (3) of the Civil Service Law which includes in the Exempt class one deputy clerk for each court. Meahl v. Ordway, 98 Misc. Rep. 394.) Section 22 Construction of "Held" in -Abolition of position· another position (Matter of Transfer to the said 3. The word "held" in the provision of section 22 of the Civil Service Law that "If the position so held by any such honorably discharged volunteer fireman shall become unnecessary or abolished honorably discharged volunteer fireman holding the same shall not be discharged from the Public Service, but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill,” etc., includes a probationary as well as a permanent occupancy of the position. (People ex rel. Zieger v. Whitehead, 99 Misc. Rep. 578.) Appointment of Probationer to Position Afterwards Abolished to Compel Transfer to New Position Mandamus 4. Where before the expiration of the probationary period for which relator, an honorably discharged volunteer fireman, was appointed to the position of foreman in the street department of the City of Niagara Falls, the position was abolished, resulting in his discharge from the city employment, he is entitled under section 22 of the Civil Service Law to a peremptory writ of mandamus providing for his transfer to some new position for which he is fitted. (People ex rel. Zieger v. Whitehead, 99 Misc. Rep. 579.) Right to Complete Probationary Period - May Then be Discharged 5. Upon again entering upon his duties in said municipal service relator will still be a probational employee entitled as of right to complete the unexpired portion of the probationary period, at the end of which he may be peremptorily discharged. (People ex rel. Zieger v. Whitehead, 99 Misc. Rep. 579.) Reinstatement · Removal Without Opportunity of Making Explanation — 6. In a proceeding to reinstate a Civil Service employee in a position from which he had been removed without an opportunity of making an explanation where the material allegations of a petition for a writ are admitted, or not denied, and different inferences cannot be drawn therefrom, only a question of law is presented and the decision is upon the merits and appealable to this court. (People ex rel. Van Tine v. Purdy, 221 N. Y., 396, reversing 177 App. Div. 887.) Removal of Deputy Tax Commissioner of New York City in Violation of Section 1543 of the City Charter 7. The removal of one from the position of deputy tax commissioner of the City of New York, to which position he had been regularly appointed from the Competitive Civil Service list,, without giving him an opportunity of making an explanation, or entering the grounds of his removal upon the records of the department, is a violation of section 1543 of the city charter. (People ex rel. Van Tine v. Purdy, 221 N. Y. 396, reversing 177 App. Div. 887.) Reinstatement · Removal of Employee of State Prison not Justified — Certiorari 8. In People ex rel. Kelley v. Kirchwey, 177 App. Div. 706, the relator, a Spanish War Veteran, was dismissed from his position as storekeeper in Sing Sing Prison on charges that he had made an unauthorized offer to trade a calf belonging to the prison; with speaking disrespectfully of the warden and buying food for the warden's table at high prices. Evidence considered, and held, that the charges were trivial, insufficient to justify the removal, and that the relator should be reinstated. County Law Section 169 of County Law as amended by Chap. 345 of the Laws of 1915. See Civil Service Law 1. NEW YORK CITY Resolution recommending increase in salary of assistant engineer practical construction indicated that resolution related to only one position under that name The board of estimate and apportionment of the city of New York adopted a resolution recommending that the salary of the position of assistant engineer in the department of docks and ferries be fixed at $4,000 per annum, which was concurred in by the board of aldermen. The title of assistant engineer is given to a number of positions in that department, hence an ambiguity exists which opens the door to proof of extraneous circumstances which may throw light on the meaning of the resolution. As bearing on the question of practical construction, held, that the circumstances which led to and which followed the adoption by the board of estimate and apportionment of the resolution sustain the construction placed thereon by the city, that it related only to the salary of one assistant engineer in the department, and justify the denial of the plaintiff's claim. (Wintersteen v. City of New York, 220 N. Y. 57, aff'g 163 App. Div. 896.) NIAGARA FALLS (City of) See Civil Service Law 4. OPINIONS OF ATTORNEY-GENERAL Civil Service Law- Applicability of to Persons Taking Census of Military Resources of State-Laws of 1917, Chapter 103 Clerks employed in the military department of the State pursuant to an order of the Governor, assigning the Adjutant-General to special duty pursuant to Military Law, section 210, for the purpose of taking a census and inventory of the military resources of the State as authorized by chapter 103 of the Laws of 1917, are not within the purview of the Civil Service Laws and therefore they are not within the jurisdiction of the Civil Service Commission or subject to the laws and rules governing admission into the civil service of the State. INQUIRY Must employees engaged in the taking of a census and inventory of the military resources of the State under the authority of chapter 103 of the Laws of 1917 be selected from the civil service lists of the State? OPINION On March 26, 1917, the Governor signed chapter 103 of the Laws of 1917, entitled "An act to provide for taking a census and inventory of the military resources of the state, and making an appropriation therefor." The act provides as follows: "Section 1. The Governor is hereby authorized to cause a census and inventory of resources of the state, available for use in the event of war, to be taken forthwith; and the information thereby secured shall be placed at the service of both the state and the federal governments." In section 2 it was made the duty of every public official to assist the Governor in the making of this inventory. In section 3 an appropriation was made of $150,000 out of the State treasury for the purposes of this act and then it was provided: "And the Governor is hereby authorized to receive donations of money for such purposes, in addition to the amount hereby appropriated, and to expend the same accordingly.” On April 5, 1917, Congress declared that a state of war existed between the United States and Germany. Pursuant to chapter 103 of the Laws of 1917, Governor Whitman signed the following executive order: "Brigadier-General Louis W. Stotesbury is hereby ordered for duty by the Governor within the meaning of M. L. 210, for the purpose of |