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People ex rel. Ross v. Dooling

Supreme Court of New York, Appellate Division

April 23, 1909


Appeal from Special Term, Richmond County.

Mandamus, on the relation of Alexander M. Ross, against John T. Dooling and others, Commissioners, composing the Board of Elections of the City of New York. From a final order of the Special Term dismissing an alternative writ, and from an order of the Trial Term ( 61 Misc. 358, 113 N.Y.Supp. 246) setting aside a verdict and dismissing writ, relator appeals. Order of Special Term reversed, and order of Trial Term modified to provide for new trial.

[116 N.Y.S. 372] George M. Pinney, Jr. (Warren C. Van Slyke, on the brief), for appellant.

Theodore Connoly (Royal E. T. Riggs, on the brief), for respondents.



The relator was removed from his chief clerkship in a borough bureau of the board of elections of the city of New 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 waive his right 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 Richmond borough office of the board of elections of the city of New 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 Richmond, 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 incompetency; 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 (Laws 1900, p. 420, c. 195). [116 N.Y.S. 373] 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, and not in the exercise of discretion. The relator appealed 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 a verdict, inasmuch as a direction was requested by both parties. People ex rel. Gleason v. Scannell, 172 N.Y. 316, 65 N.E. 165.But I think that the court at 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, and hence the final disposition is with the Special Term. People ex rel. Bean v. Clausen, 74 A.D. 217, 77 N.Y.Supp. 521; People ex rel. Geraci v. Association, 123 A.D. 277, 107 N.Y.Supp. 1101.Although the learned 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, 35 N.E. 650,37 Am.St.Rep. 569), the doctrine of waiver is applied to an appointee or employé 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 employé 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, 190 N.Y. 497, 83 N.E. 597, and People ex rel. McDonald v. Clausen, 50 A.D. 286, 63 N.Y.Supp. 993, 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 [116 N.Y.S. 374] 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 from 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 employé become 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 you?"

The reply was:

" No, sir; I have not, and I don't intend ...

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