Summary
In People ex rel. Ambrose v. Tompkins (208 N.Y. 353, 358), upon the trial of the issues raised by the return to the alternative writ of mandamus, the question arose whether the relator had the right to prove that he was removed from his position for political reasons, and this court held that such evidence was competent.
Summary of this case from People ex Rel. Somerville v. WilliamsOpinion
Argued March 3, 1913
Decided May 6, 1913
Eugene Lamb Richards, Jr., and William A. Sweetser for appellant. Archibald R. Watson, Corporation Counsel ( Terence Farley and Harry Crone of counsel), for respondent.
The question to be determined on the trial of the case at bar was raised by the alternative writ of mandamus and the return, viz., that the charges were "trumped up, preferred and made for political reasons, only," thereby rendering the removal of relator contrary to law. Relator was entitled to present for the consideration of the jury facts pertinent to that issue, and sought to introduce in evidence certain rules and regulations of the civil service commission of the city of New York, which were produced by the secretary, who was called as a witness by the relator. The evidence was objected to by counsel for respondent, the objection was sustained by the trial justice upon the ground "that it is immaterial in this proceeding," to which exception was taken. The civil service rules having been approved by the state civil service commission were competent as evidence. ( People ex rel. Sears v. Tobey, 153 N.Y. 381.) Relator was entitled to have the rules of the civil service governing the position held by him and any inhibition upon his removal for political reasons considered by the jury. It was error to reject the evidence.
Section 1543 of the charter of the city of New York (L. 1901, ch. 466) provides:
"No regular clerk or head of a bureau, or person holding a position in the classified municipal civil service, subject to competitive examination, shall be removed until he has been allowed an opportunity of making an explanation; and in every case of a removal, the true grounds thereof shall be forthwith entered upon the records of the department or board or borough president, and a copy filed with the municipal civil service. In case of removal, a statement showing the reason therefore shall be filed in the department."
In compliance with that section charges were made and served on the relator, to which he made answer, and after examination of the charges relator was removed from office.
From the alternative writ it would appear that respondent had been commissioner of the department of docks from about January 1st, 1910. While relator was upon the stand he testified he had known respondent since January 3rd, 1910; that he met him on January 5th, 1910, in his office on pier A. He was asked the following question: "Q. What conversation did you have with him or what did he say to you? Q. Did Mr. Tompkins say to you `I want your resignation from office?' Q. Did you say to Mr. Tompkins in that conversation `I am in the competitive class of the Civil Service and you cannot have my resignation?' Q. Did Mr. Tompkins say to you in that conversation `I want your resignation because I want somebody as Superintendent of Municipal Ferries in sympathy with me?'" Each question was objected to as incompetent, immaterial, irrelevant, not pleaded, and each objection sustained and exception taken.
If we assume for argument's sake that the respondent had stated to relator that a failure on the part of the latter to resign would result in his removal from office for the reason that relator was not affiliated with the same political party of which respondent was a member we do not believe the admissibility of such evidence would be questioned. Upon the trial of the issue presented in this proceeding the conversation between the parties relative to the cause of the removal, as to whether or not it was for political reasons, was competent and the exclusion of the same was error.
For the reasons stated, the order should be reversed and a new trial ordered, costs to abide the event.
CULLEN, Ch. J., WERNER, WILLARD BARTLETT and CHASE, JJ., concur; GRAY and COLLIN, JJ., dissent.
Order reversed, etc.