THE PEOPLE ex rel. JAMES DENHOLM, Relator, v. CHARLES WELDE, as Commissioner of Jurors, Respondent.

(Supreme Court, New York Special Term, June, 1899. 27 Misc. Rep., 697) CIVIL SERVICE THE COMMISSIONER OF JURORS OF MANHATTAN AND THE BRONX IS A CITY OFFICER, ONE OF WHOSE CLERKS CANNOT BE REMOVED SUMMARILY AND IN CONTRAVENTION OF CHAPTER 186, LAWS OF 1898-MANDAMUS.-Under the charter of the Greater New York (laws of 1897, chapter 378) the commissioner of jurors of the boroughs of Manhattan and of the Bronx is a city officer, and, therefore, a clerk in his office, who was removed after chapter 186 of the laws of 1838 had gone into effect, without written reasons for his removal filed or being afforded any opportunity to explain, is entitled to be reinstated by a peremptory writ of mandamus.

Motion for a peremptory writ of mandamus.

Mayer & Gilbert for relator.

John Whalen (corporation counsel), for respondent.

Scott, J.: The respondent has filed a stipulation admitting that the place formerly held by the relator was, as matter of fact, classified by the municipal civil service commissioners, on March 1, 1898, as a place in schedule B, subject to competitive examination, which said classification was approved by the mayor of the city of New York on March 5, 1898. The respondent couples with this admission a claim that such classification was, as matter of law, void and of no legal effect, for the reason that the office of the commissioner of jurors then was and still is a county office. This admission obviates the issue of fact which was apparently raised by the answering affidavits read on the motion. The relator, a clerk in the office of the commissioner of jurors for the boroughs of Manhattan and the Bronx, was removed by the respondent's predecessor on April 1, 1898. No grounds for his removal were entered upon the records of the office of the commissioner of jurors, nor was any statement of the reason for his removal filed in said office, nor was he offered or allowed any opportunity for making an explanation. The whole question of the legality of his removal turns upon the question whether the office of commissioner of jurors for the boroughs of Manhattan and the Bronx is a city or a county office. If it is a city office the removal was unlawful, because it violated chapter 186 of the laws of 1898. If it is a county office that act does not apply, and the removal was lawful. Whether it is a city or county office must be

determined by a construction of the charter of the present city of New York. For some reason not easily explainable, the legislature has treated the office of commissioner of jurors in this county in a manner different from that in which it has treated like commissioners in other counties. The office of commissioner of jurors for all counties except New York and Kings was created and is regulated by chapter 369, laws of 1895, under which the commissioners are unquestionably county officers and a part of the judicial system of the state, and there is no doubt. that the commissioner of jurors for Kings county is also a county officer. (Chapter 322, laws of 1858.) In the city of New York, the mayor was first given power to appoint a commissioner of jurors by the charter of 1873. (Chapter 335.) The court of appeals distinctly held that under that act the office of commissioner of jurors was a city and not a county office. (People ex rel. Taylor v. Dunlap, 66 N. Y., 162; Taylor v. Mayor, 67 N. Y., 87.) The provisions of the charter of 1873, relating to the commissioner of jurors, were copied into the consolidation act of 1882, and if that office was a city office under the act of 1873, it must for the same reasons have been a city office under the act of 1882. It is claimed, however, that the Greater New York charter of 1897 (chapter 378) has in some way changed the character of the office. I do not so read the act. On the contrary, the legislature seems to have taken pains to preserve the difference between the commissioners in New York county and in other counties. That the commissioner of jurors in this county should have been provided for at all in the Greater New York charter is in itself significant of an intention on the part of the legislature that he should be deemed to be a city officer. That act is, as its title implies, distinctively a municipal charter. It is designed to provide exclusively for the government of a city, and is not, as was the consolidation act of 1882, a mere consolidation of all the special and local acts affecting any public interests in what was then the city. of New York. A provision for the appointment of a commissioner of jurors, even if he had been a county officer, might appropriately have been inserted in the consolidation act, but would have no

place in a purely municipal charter like that of the Greater New York. It is also a significant circumstance that while the present city of New York embraces several counties, one, at least, of which has a commissioner of jurors, the only one whose appointment is provided for by the charter is that one who exercises his functions in the county of New York. The title given to this commissioner, in the charter is also significant. He is not, as he well might be, called the commissioner of jurors for the county of New York, but the commissioner of jurors for the boroughs of Manhattan and the Bronx. These boroughs are the creations of the charter, and exist only as subdivisions of the city of New York. They cover precisely the same territory as the county of New York, and it is not easy to see why this particular commissioner of jurors was given so cumbersome a title, unless it was to identify him with the city, in contradistinction to the county. If, as the court of appeals held, the commissioner of jurors was a city office under the charter of 1873, I am unable to find in the charter of 1897 any indication of an intention to change his status to that of a county officer. I feel, therefore, constrained to hold that the respondent is a city officer, and, as such, amenable to the provisions of chapter 186 of the laws of 1898. If so, the act of his predecessor in removing the relator was unlawful. I have not overlooked the case of People ex rel. Maharin v. Plimley, 1 App. Div., 458. All that the court held in that case was that section 48 of the consolidation act applied only to departments constituted by chapter 2 of the act, and, therefore, did not apply to the commissioner of jurors. The attention of the court does not seem to have been called to the case of People ex rel. Taylor v. Dunlap, supra. For the reasons recently stated at length in People ex rel. Tierney v. Scannell, 27 Misc., p. 662, I think that the relator has sufficiently and satisfactorily explained his delay in moving and is not to be held guilty of laches.

The motion for a peremptory mandamus must be granted, with $25 costs.

Motion granted, with $25 costs.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. SEVERIN WARSCHAUER, Appellant, v. WILLIAM DALTON, as Commissioner of Water Supply of the City of New York, Respondent.

(Court of Appeals, June, 1899. 159 N. Y. Rep., 235)

1 NEW YORK CITY-REMOVAL FROM MUNICIPAL SERVICE" REGULAR CLERK."An inspector of water supply to shipping in the department of water supply of the city of New York is not a regular clerk," within the meaning of section 1543 of the Greater New York charter (L. 1897, ch. 378), which provides that no regular clerk shall be removed until he has been allowed an opportunity of making an explanation.

2 PROTECTION OF CIVIL SERVICE ACT OF 1898-NECESSITY OF ALLEGATION OF COMPETITIVE POSITION, IN PROCEEDING FOR REINSTATEMENT.-To enable a person removed from the civil service of the city of New York in June, 1898, to insist, in a proceeding for a mandamus to compel reinstatement, that he was entitled, under chapter 186 of the laws of 1898, to have the reasons of removal set forth and filed, and to have an opportunity to make an explanation, he must allege in his petition that the position from which he was removed was at the time in the competitive class.

3

APPEAL-RECORD EVIDENCE NOT IN RETURN.-Record evidence not in the return cannot be resorted to in the court of appeals to secure a reversal. People ex rel. Warschauer v. Dalton, 34 App. Div., 302, affirmed.

Appeal from an order of the appellate division of the supreme court in the first judicial department, entered November 19, 1898, affirming an order of special term denying a motion for a peremptory writ of mandamus requiring the respondent to reinstate the relator in his position of inspector of water supply to shipping in the department of water supply of the city of New York.

The facts, so far as material, are stated in the opinion.

W. R. Spooner for appellant.

John Whalen, corporation counsel (Theodore Connoly of counsel), for respondent.

Parker, Ch. J.: On this appeal the relator insists that his attempted removal by the defendant on the 11th day of June, 1898, was illegal upon two grounds: first, because it appears by the relator's petition that he was holding the position of a regular clerk, and therefore could not be removed without an opportunity to make the explanation provided for by § 1543 of the Greater New York charter; second, because he was removed from a competitive position without having the reasons therefor set forth in writing and duly filed, and an opportunity afforded him to make an explanation under chapter 186 of the laws of 1898.

As to the first ground the appellate division unanimously held that the facts recited in the petition did not show that the position held by the relator was that of a regular clerk, and, hence, it affirmed the order of the special term dismissing the writ. The opinion of that court so exhaustively considers the question as to leave nothing to be added, and we adopt it as furnishing the reasons for holding that the relator's first position on this review is not well taken.

The second ground of error alleged is apparently presented in this court for the first time in the history of this proceeding. The record contains no indication that it was brought to the attention of the special term or of the appellate division. It is suggested that the reason for it is obvious, in that the order of the special term was made in October, 1898, while the Fleming case (People ex rel. Fleming v. Dalton, 158 N. Y., 175) was not decided by this court until February, 1899. The fact that no such question was raised at the special term or at the appellate division should, under a perfectly well-settled and long-established rule, deprive the relator of the right to have it considered in this court. (Drucker v. Man. R'y Co., 106 N. Y., 157; Baird v. Mayor, etc., 96 N. Y., 567, 603; Stapenhorst v. Wolff, 65 N. Y., 596; Home Ins. Co. v. Western Trans. Co., 51 N. Y., 93.)

If, however, in violation of the rule that a party on appeal must stand by the theory of his action or proceeding as presented at the trial court or special term, we proceed to inquire into the matter, we must reach the conclusion that the relator did not show in his petition that he was within the protection of chapter 186 of the laws of 1898, in that his petition fails to state that his position under the civil service law and rules was classified as competitive. In the Leet case this court held not only that the act of 1898 had no application to an official who was classified in the non-competitive class by the New York city civil service. regulations, but also that it mattered not that at the time of his appointment the position belonged to the competitive class if it was subsequently and before the act of 1898 took effect classed as non-competitive. (People ex rel. Leet v. Keller, 157 N. Y., 90.)