the enactment of this law, and that members voting against it did so because it applied to the city and was likely to limit, to some extent, its existing charter.

There are other points discussed, but it is unnecessary to consider them.

There is one suggestion made by the counsel for appellant that bears very strongly upon the intention of the legislature in passing the Greater New York charter.

Section 127 of the charter applies only to those veterans actually in the employ on January 1, 1898, of any municipality included in the consolidated territory.

As to all veterans not in the employ of the new city it must be assumed, in view of the declared policy of the people, that the legislature considered them within the protection of the general veteran laws of the state.

If the framers of the charter had contemplated a separate and distinct civil service system for the city, it may be safely assumed they would have enacted along with it as a distinct veteran system the general laws known as the veteran acts, which afford protec tion to those who are so peculiarly the objects of popular solicitude that their rights under the civil service laws have been guarded by constitutional amendment.

We are of opinion that the relator was removed without due warrant of law, as the new civil service regulations of the city of New York were in force at that time, April 11, 1898, and classified his position as subject to competitive examination; he was, therefore, entitled, under section three of the act of 1898, amending section thirteen of the act of 1883, to have the reasons for his removal stated in writing, filed, and an opportunity afforded him to make an explanation.

The order of the appellate division should be reversed and the order of the special term affirmed, with costs in all the courts.

Gray, J. (dissenting): I dissent from the conclusion reached by Judge Bartlett, that the order of the appellate division should be reversed, upon two grounds. In the first place, chapter 186 of the laws of 1898 did not apply to the city of New York; my reasons

for that statement being given in the Leet case (157 N. Y., 90), and again, somewhat more fully expressed, in the Terry case, decided at this term.

In the second place, the act of 1898, referred to, was prospective in its operation and did not affect the civil service rules and regulations which were adopted by the municipal civil service commissioners of the city of New York, on March 5, 1898, and which were existing at the time; nor would affect them, until the expiration of three months, when they would cease, if not previously approved by the State Board. Therefore, the removal of the rela tor on April 11, 1898, because effected under regulations at the time not affected by the amending act of 1898, was valid. This ground is also covered by the discussion in the Leet and Terry cases (supra).

I think that the order of the appellate division should be affirmed, with costs. O'Brien, J., concurs.

All concur (Parker, Ch. J., in result) with Bartlett, J., for reversal, except Gray and O'Brien, JJ., who file dissenting memorandum.

Order reversed, etc.

WILLIAM H. HOGGETT, Respondent, v. THE CITY OF MOUNT Vår

NON, Appellant.

(Supreme Court, Appeilate Division, Second Department, January, 1899. 36 App. Div. Rep., 374)

CHARTER OF THE CITY OF MOUNT VERNON-EMPLOYMENT OF AN INSPECTOR BY THE COMMISSIONER OF PUBLIC WORKS-RIGHT OF A SUCCESSOR TO DISCHARGE THE EMPLOYEE.-A person employed under section 122 of chapter 182 of the laws of 1892 (the charter of the city of Mount Vernon) to superintend or inspect certain work then being done under the general supervision of the commissioner of public works, is not entitled to claim during the term of a successor of such commissioner, under whom he continued to work, that he had made a contract with the former commissioner which bound the city to employ him until the work was completed. Semble, that such a contract could, in any event, be made only with the permission of the commissioner actually in office at the time when the work was to be done.

Appeal by the defendant, the city of Mount Vernon, from a judgment of the county court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of

Westchester on the 7th day of September 1898, upon the verdict of a jury, and also from an order bearing date the 23d day of June, 1898, and entered in said clerk's office, denying the defendant's motion for a new trial made upon the minutes.

William J. Marshall, for the appellant.

David Swits, for the respondent.

Woodward, J.: This action was brought to recover for services alleged to have been rendered by the plaintiff as an inspector of the work of improving one of the highways of the defendant. It appears that the plaintiff was appointed or employed by the commissioner of public works of the city of Mount Vernon as an inspector of certain street improvements, the plaintiff claiming that he was appointed for the time necessary to complete the work. Some time after the original employment a new commissioner of public works came into office, and on the tenth day of August the plaintiff was dismissed from the service and a man appointed to take his place. The plaintiff, claiming to have been appointed during the continuance of the work, and to be in some manner protected by the civil service regulations of the city, refused to consider himself dismissed, but continued to report for duty during the time that the work was in progress; and this action was brought to recover three dollars and fifty cents per day from the 10th of August to the 16th day of November, 1897.

The trial court submitted to the jury the single question: "Was the plaintiff discharged or removed for cause, or was he not?" In the view which we take of the case this question is entirely immaterial. The plaintiff was not a public officer in any proper sense of the word, nor under the rule approved in this court in the case of Carmody v. City of Mount Vernon (3 App. Div., 347), Mr. Justice Bartlett writing the opinion, was he within the protection of the civil service rules of the city. He was simply employed temporarily under the provisions of the charter of the city of Mount Vernon (chap. 182, laws of 1892) to superintend or inspect certain work which was being done under the general supervision of the commissioner of public works, who is authorized by section 122 "to employ such men as may be required to per

form any public work not done by contract and to discharge them, the number to be employed at any one time to be subject to the direction and control of the common council". The plaintiff accepting employment under the provisions of this law, the former commissioner of public works could not make a contract binding upon the city to employ the plaintiff to the completion of the work, except by the permission of the commissioner who was actually in office; and when the plaintiff elected to continue to report for duty, in spite of his removal from the position, he did so without any reasonable warrant of the law and he cannot now recover. The plaintiff was not an inspector under the provisions of section 120 of the charter; the inspectors there mentioned are to be appointed by the commissioner, by and with the consent of the common council, for the purpose of inspecting the connections with sewers and drains, and to see that all contracts with the city, in respect to sewers and drains, are carried out.

The civil service laws were never intended to embarrass public officials in the discharge of their duties, nor to keep in employment every man who should be temporarily engaged in some work for the city or state. By the provisions of section 121 of the charter of Mount Vernon, it is made the duty of the commissioner of public works to "supervise and carefully examine all work done under contract with said city, and to report thereon," etc.. and the next section provides for the employment of such men as may be required and to discharge them. The plaintiff was merely an inspector to assist the commissioner in the discharge of his duty of supervising the work which was being done by the contractors, and he had no greater claims upon the city than any other employee who was working for a stated per diem sum.

The proof in this case shows that the plaintiff was appointed by the commissioner of public works upon a particular piece of highway work, and not that he was appointed an inspector of sewers and drains, by and with the advice and consent of the common council; and the contention of counsel that he is within the provision of section 120 is without force. We are of opinion the trial court erred in refusing to dismiss the complaint at the

close of plaintiff's evidence, upon the grounds stated by counsel for the defendant.

The judgment and order should be reversed, with costs.
All concurred.

Judgment and order reversed and complaint dismissed, with

costs.

THE PEOPLE ex rel. ROBERT MILLER, Relator, V. THOMAS L. FEITNER et al., as Commissioners of Taxes, etc., Respondents. THE PEOPLE ex rel. JOHN J. HERRICK, Relator, v. SAME, Respondents.

(Supreme Court, New York Special Term, April, 1899. 27 Misc. Rep., 153) CIVIL SERVICE LAW-DEPUTY TAX COMMISSIONERS, IN THE COMPETITIVE CLASS IN NEW YORK CITY, CANNOT BE REMOVED SUMMARILY-LAWS OF 1888, CHAPTER 186.-Deputy tax commissioners of the city of New York, transferred to similar positions under the Greater New York charter and who, after the passage of chapter 186 of the laws of 1888, were placed by the municipal civil service commissioners in the competitive class, cannot subsequently be summarily removed from their positions, and are entitled to the observance of the statutory direction "that the reasons therefor shall be stated in writing and filed with the head of the department or other appointing officer, and the person so removed or reduced shall have an opportunity to make an explanation."

Applications argued together, for peremptory writs of mandamus to compel the reinstatement of the relators as deputy tax commissioners in the department of taxes and assessments in the city of New York.

Samuel H. Ordway (Stickney, Spencer & Ordway, of counsel), for relators.

Theodore Connoly and James M. Ward (John Whalen, corporation counsel), for respondents.

Giegerich, J.: Prior to the 1st day of January, 1898, the relators were deputy tax commissioners under the former city government, and when the Greater New York charter went into effect on that date, pursuant to the provisions of section 1536 thereof, they were transferred to similar positions in the department of taxes and assessments. The municipal civil service commissioners, in conformity with the requirements of section 123 of said charter, prescribed certain regulations for appointments to