Opinion
June 26, 1935.
Appeal from Supreme Court of Erie County.
Gilbert J. Pedersen, for the petitioner.
Gregory U. Harmon, Corporation Counsel [ John E. Livermore of counsel], for the defendant James W. Higgins, commissioner of police.
Present — SEARS, P.J., TAYLOR, EDGCOMB, THOMPSON and CROSBY, JJ.
On March 2, 1931, the petitioner was duly appointed laborer in the department of police in the city of Buffalo, N.Y., and was assigned to the work of washing cars at the police garage. He held that position until April 20, 1934, when he was summarily discharged. He alleges that his removal was illegal for the reason that no written charges were served upon him, and he was never given a chance to defend himself. He also claims that his dismissal was occasioned solely for political reasons in violation of section 25 Civ. Serv. of the Civil Service Law.
In its essential elements this proceeding is comparable to Matter of Deth v. Castimore ( 245 App. Div. 156), decided herewith. Each petitioner claims his right to relief under the same statute, and the same objections and excuses are urged by the respective parties in both proceedings.
While the work done by the petitioner in the instant case is somewhat different from that performed by the petitioner in the Deth case, I think it must be said that Howard was a member of the police department, within the meaning of section 445 of the Buffalo charter (Local Law, No. 4, 1927; Local Law 1932, p. 107), for the same reasons that we held Deth to be a member of the fire department. What we said in our opinion in the Deth case is largely applicable here. There is not enough difference between the two cases to take the present proceeding out of the rule laid down in the Deth case, and the same result should follow in each instance.
All concur.
Order so far as appealed from by the defendants affirmed, with costs. Order so far as appealed from by the petitioner reversed on the law, without costs, and matter remitted to the Special Term to determine what amount of compensation, if any, the petitioner has received from any occupation in which he has been engaged from the date of his removal to the time of his restoration to his former position to the end that an order may be entered in accordance with the opinion.
See decision in Matter of Deth v. Castimore, 245 App. Div. 156. — [REP.