Opinion
March 24, 1910.
Terence Farley of counsel [ Theodore Connoly with him on the brief], Archibald R. Watson, Corporation Counsel, for the appellant.
Henry S.J. Flynn of counsel [ Samson Friedlander with him on the brief], Flynn Hess, attorneys, for the respondent.
This is an appeal from an order of the Special Term directing a peremptory writ of mandamus to issue commanding the commissioner of water supply, gas and electricity of the city of New York to forthwith and immediately restore, reinstate and retain Frank E. Brown, the relator, to and in the office and position of electrical engineer of the electrical bureau for the boroughs of Manhattan and the Bronx.
Relator was in the classified civil service and was the head of a bureau and, therefore, under section 1543 of the charter (Laws of 1901, chap. 466) he could not be removed until allowed an opportunity of making an explanation. He was suspended. An investigation was going on in regard to his bureau. He waited some months and began proceedings for a mandamus. He was then served with notice of charges and given an opportunity to appear on the eighth of February to give an explanation, or was permitted to do so in writing. He chose to submit on that day a voluminous answer in writing by his counsel. The commissioner inquired if he desired to appear for further explanation, and the answer was that he did not care to attend or appear in person. Thereafter the commissioner removed him. He did not at once, however, file the reasons therefor as required by the charter and the civil service rules, but when that was called to his attention by these proceedings he promptly did so.
We have held repeatedly that a mandamus proceeding does not act as a writ of review, and if the opportunity to make an explanation has been granted we will not consider whether the charges ought to have been sustained. In People ex rel. April v. Butler ( 122 App. Div. 790) we held that the filing of the statement of the grounds of removal as required by the charter was not a condition precedent, but it was enough if said statement was subsequently filed.
The commissioner, in his answer, stated that he found relator guilty of the particular charges, after having given him an opportunity for an explanation and after consideration thereof. There is nothing for the court to review in this proceeding.
The commissioner is vested with the power of removal when he follows the procedure provided by the statute.
The order appealed from should be reversed, with ten dollars costs and disbursements to the appellant, and the motion denied, with ten dollars costs.
INGRAHAM, P.J., LAUGHLIN, SCOTT and MILLER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.