Opinion
September, 1912.
Thomas F. Tevlin, for relator.
Archibald R. Watson, corporation counsel, Edward S. Malone, assistant corporation counsel, for respondents.
The relator was a stoker or fireman in the highway department, borough of Queens, at the Far Rockaway Disposal Works. On April 29, 1912, he was transferred to the Jamaica Disposal Plant and reported there next day. He found the plant closed, and on the same day he was suspended with other persons "owing to reduction in force at the Jamaica Disposal Plant," and his name was then placed on the preferred eligible list, where it now remains, to be certified for work when requisition is made therefor. It also appears that, on May 1, another man who had previously been employed as a stoker at the Jamaica works was transferred to the Far Rockaway plant and is there doing the work previously done by the relator. He claims that his transfer under these circumstances was a removal by subterfuge, without charges, and a violation of section 1543 of the charter. Construing the facts most strongly in his favor, and assuming that it was known at the time of transfer that there would be nothing for him to do at the Jamaica plant and that he would be at once suspended, still it was the right and the duty of the superintendent to make such rearrangements of his working force as seemed proper and economical to him. People ex rel. Patten v. Waring, N.Y.L.J. Nov. 7, 1905. "In such case now the employe is not removed. By operation of law the petitioner was suspended without pay, and his only right was to have his name certified * * * for reinstatement when necessary." People ex rel. Levenson v. Wells, 78 A.D. 373, 377. The relator had no vested right or franchise to continued employment, and the cases dealing with the ostensible abolition of an office and its immediate recreation under another name with a new incumbent do not apply. The opinion of Mr. Justice Maddox in Waters v. City of N.Y., 43 Misc. 154, is not intended to be an authority for any general rule or holding "that any reduction of salary or change in position is tantamount to a removal where it operates to the detriment of the employe," as claimed by the relator. That case merely held that a bookkeeper of the old city of New York, who was required by a section of the consolidating charter, not applicable to the case at bar, to be continued in the service of the consolidated city "without prejudice or advantage," could not be subjected to a sharp decrease in salary while he continued to perform the duties of the same place under the same designation.
Motion denied, with costs.