The People of the State of New York ex rel. Thomas J. McCabe, Relator, v. Stevenson Constable, as Superintendent of the Department of Buildings of the City of New York, Respondent

The People of the State of New York ex rel. Thomas J. McCabe, Relator, v. Stevenson Constable, as Superintendent of the Department of Buildings of the City of New York, Respondent. Bemoval of a regula)' clerk -of the department of buildings of New Torio city — notice of the charge and a hearing are prerequisites thereto. A regular clerk of the department of buildings of the city of New York was ' removed — on the ground that he had caused to be made a copy of objections to ■a form of application for a building permit indorsed on such form, which was a public record, and had placed the same on his desk, for the use of an architect — without service upon the clerk of a notice of the cause of his proposed removal, or a hearing being given him, as required by the Consolidation Act (Laws of 1882, chap. 410, § 48). • . Meld, that such removal was not justified by the act creating the department (Laws of 1892, chap. 275, ■§ 48), as a regular clerk does not, within the meaning of that act, belong to the class of “officers and employees” whom the superintendent of the. department is by that section authorized to discharge. Certiorari issued out of the Supreme Court and attested on the 8th day of December, 1897, directed to. Stevenson Constable, as Superintendent of the Department of Buildings of the city of New York, commanding him to certify and return to the office of the, clerk of the county of New York all and singular his proceedings-in regard to the dismissal of tlie relator from his position as a regular clerk in that department.' The relator was appointed a clerk in January, 1884, in the bureau' of inspection of buildings, and upon the establishment of the department of buildings, in 1892, he was transferred and served as a clerk until his removal. In the petition for the writ it is stated that in or about the month of August, 1887, a certain .form of application for a permit to build was disapproved by 'the superintendent' of said department, and the objections thereto were noted thereon; that thereafter an architect, one Cole, asked the' relator the nature of said objections ; that the relator caused a type-written copy to be made by a- type writer in the office, and a copy was placed on his desk, of which fact the superintendent had knowledge ; that the application for a permit was a public record entitled to be seen with the indorsements thereon by the public on application and by persons interested therein; that on the 18th of August, 1897, the superintendent sent for the petitioner and asked him the nature-of the type-written memorandum, which information was furnished ; and thereupon the superintendent stated that the relator had violated the rules of .the department, and requested his resignation.; that he declined to give it, and thereafter, on the nineteenth of August, he received a letter removing him from his position as clerk to take effect on that day. He further states that what he did was in no sense a violation of any of the rules or regulations of the department; that he was not served with any copy of -the charges, and did not have a hearing upon notice, reasonable or otherwise, but that such hearing as was had was contrary to the rule of the department which requires twenty-four hours’ notice of a hearing upon charges; that there is no rule of the department or any requirement of law forbidding the giving of information regarding the public record in question or the furnishing of the typé-written copy, and that the public generally are entitled to receive information during the public office hours concerning said public records. The return states that “ it was not part of his duties to furnish to the public copies of objections to plans on file therein except in the regular course of business; ” and that the relator violated the rules, and regulations of the department by directing one of the stenographers to copy the objection to a certain plan on file in said department so that he could send or deliver the same to a person interested in said plan. Francis A. Winslow, for the appellant. Eugene Otterbourg, for the respondent. [MAJORITY — O’Brien, J.:] O’Brien, J.: Section 2138 of the Code of Civil Procedure provides that this proceeding “ must be heard upon the writ and return and the papers upon which the writ was granted.” It will be noticed that the return does not deny that the rule of the department- required twenty-four hours’ notice of a hearing, or that the objections to the plan on file, of which the relator had a type-written copy made, were public records open to the inspection of the public, all that is said on that subject being that it was not the relator’s duty to furnish to the pub-lie copies “ except in the regular course of business ” — whatever that may mean. It would appear that it was during business hours, and it is not claimed that the objections were not matters with which the relator was connected, nor does the superintendent in his return furnish any copy of any rule of the department forbidding what the relator did. So that upon the petition and return it is made clearly to appear that the charge was to a degree ■ frivolous and entirely insufficient to justify the removal, because it narrows down simply to a charge that the relator caused to be made openly a type-written memorandum of the indorsement on a public record and caused the same to be placed upon his desk; an. act which the return itself does not show was a violation of any rule of the department, the statement being that it was “ not part of his (the relator’s) duties.” There is not a suggestion or intimation that the copy was to be used for any improper or corrupt purpose, but, on the contrary, it would appear that it was made for the purpose of being furnished to an architect who had the right, it being a public record, to see it and take a copy of it if he saw fit. In making the copy or causing it to be made, the relator merely saved the time of the architect who applied for it, who otherwise would have been obliged to make the copy himself. Section 48 of the Consolidation. Act (Chap. 410, Laws of 1882), in effect at the time of the removal, provided that “ no regular clerk or head of a bureau shall be removed until hedías been informed of the cause of the proposed removal and 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.” It is conceded that the relator was a regular clerk, and that he did not receive the notice as required by the rule of the department, but he was summoned and, after being asked and truthfully stating about the type-written copy which was then on his desk and had not been handed to anybody, his resigna- ■ tion was demanded, and that being refused he Was summarily dismissed. Here, therefore, we have neither notice of a hearing, nor a hearing, nor notice of a proposed removal. Unless, therefore, the position taken by the respondent is correct, that the relator could be discharged without any hearing, arbitrarily, then clearly the dismissal was wrongful. The contention that the relator could be discharged without any hearing whatever is based upon section 3 of chapter 275 of the Laws of 1892, which provides as follows: “ Said superintended! shall have power to engage in behalf of such department buildings, and in his discretion to discharge, from time to time, such officers and employees thereof, subject to the provisions hereinafter stated, * * * and may make from time to time rules and regulations for their government.” It will be noticed that this section is not inconsistent with section 48 of the Consolidation Act, nor does it in any manner repeal or modify the provisions of that' section. As will appear, there were several grades of persons in the department, divided up and designated as heads of bureaux, officers, regular clerks, employees and inspectors, and it will be seen by reference to section 43 of chapter 275 of the Laws of 1892, that the power to arbitrarily remove inspectors was given, as it is by section 3 to remove officers and employees. The rights of regular clerks or heads of bureaux were, therefore, left to be governed and controlled by section 48 of the Consolidation Act. The relator being entitled, therefore, to notice of the cause of proposed removal and to an' opportunity of making an explanation, the action of the superintendent in removing him without according him his legal rights' and upon a charge that was frivolous and baseless, calls for a reversal of his action. The action of the respondent should, therefore, be annulled, and the relator reinstated, with costs. Van Bbünt, P. J., Rumsev, Ingbaham and McLaughlin, JJ., concurred. Proceedings annulled and relator reinstated, with costs.