The People of the State of New York ex rel. Stephen A. Rudd, Appellant, v. James C. Cropsey, as District Attorney of the County of Kings, Respondent

The People of the State of New York ex rel. Stephen A. Rudd, Appellant, v. James C. Cropsey, as District Attorney of the County of Kings, Respondent. Second Department, June 16, 1916. Civil service — ground for dismissal of employee—insubordination of clerk in district attorney’s office — mandamus — effect of failure to demur. The cause assigned for the discharge of a civil service appointee must be some dereliction of duty, or something affecting his character and fitness for his position. The charge must be based on substantial grounds and should be specific in form. A charge that a clerk in a district attorney’s office is arrogant, dictatorial and offensive to his fellow-employees and superiors, if established, shows insubordination, which justifies his removal. The hearing oí charges before the head of a department is not a trial, and the charges preferred need not be formal, as in an indictment or complaint. Where the return to an alternative writ of mandamus to compel the reinstatement of the civil service appointee admitted the correctness of the charges as set forth by the relator, by a failure to demur, there is an admission of the formal sufficiency of the charges. Appeal by the relator, Stephen A. Rudd, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of October, 1915, granting defendant’s motion to dismiss an alternative writ of mandamus herein, and also from an order made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 1st day of November, 1915, denying relator’s motion to set aside the verdict of the jury herein and for a new trial. Robert H. Elder [Otho S. Bowling with him on the brief], for the appellant. Hersey Egginton, Assistant District Attorney [James C. Cropsey, District Attorney, with him on the brief], for the respondent. [MAJORITY — Putnam, J.:] Putnam, J.: The retrial of the issue raised by these mandamus proceedings (See 163 App. Div. 910; 215 N. Y. 451) resulted ina verdict against the relator. At the beginning, and again at the close, of the testimony on the last trial, relator’s counsel moved to direct a verdict in his favor, tin the ground that the charges upon which he had been removed were insufficient, and failed to comply with the civil service laws. This was denied, and relator excepted. After more than two years’ litigation, this was the first challenge to the form and sufficiency of the charges. In the course of his charge the trial court told the jury: “You are not to try here the sufficiency of those charges. * * * The charges were substantial. The procedure was had in accordance with the Civil Service Law.” It is settled that the cause assigned for discharge of a civil service appointee must be some dereliction of duty, or something affecting his character and fitness for his position. The charges must be based on grounds substantial, and should be specific in form. The district attorney’s charges may be thus summarized: Being arrogant, dictatorial and disagreeable, both to those above relator, and toward his fellow-employees. Disobliging, and unwilling to do the work required of him; in particular as to shorthand work, although so qualified. Making an untruthful statement to the district attorney regarding the 1913 budget. Not being in harmony with his superiors in office, thereby losing the confidence of his chief, the district attorney. ■ Our statutory remedy by mandamus provides for a demurrer to raise the legal sufficiency of the charges. (Oode Oiv. Proc. § 2078.) When the return admitted the correctness of the charges as set out by relator the failure to demur has been held to amount to an admission of the formal sufficiency of such charges. (People ex rel. Hanrahan v. Board of Metropolitan Police, 26 N. Y. 316; People ex rel. Ryan v. Bingham, 114 App. Div. 170; People v. Wiechers, 179 N. Y. 469.) Even if the relator had seasonably raised the question by demurrer,- we are not prepared to hold the charges insufficient. The spirit of the Civil Service Law restricting appointments to an eligible list yet gives the appointing power ample authority to remove for cause. (28 Oyc. 446.) The district attorney was making charges the truth of which was within his knowledge. If a clerk, arrogant, dictatorial and offensive to his fellows, could not be removed for such insubordination, office efficiency would be destroyed. The hearing before the head of the department is not a trial, and the charges preferred need not be as formal as an indictment or a complaint. (People ex rel. Flanagan v. Board Police Commissioners, 93 N. Y. 97.) I advise to affirm the orders, with ten dollars costs and disbursements. Jenks, P. J., Carr, Stapleton and Rich, JJ., concurred. Orders affirmed, with ten dollars costs and disbursements.