The People of the State of New York ex rel. William H. Hart, Relator, v. O. H. La Grange and Others, Commissioners of the Fire Department of the City of New York, Appellants

The People of the State of New York ex rel. William H. Hart, Relator, v. O. H. La Grange and Others, Commissioners of the Fire Department of the City of New York, Appellants. New York fire commissioners — cannot discharge an employee in order to appoint another to his place. The commissioners of the Are department of the city of New York have no power to discharge an employee upon the pretense that his office is to be abolished, and to immediately thereafter assign another person to do the same work which had been done by the discharged employee; such a course is particularly objec- . tionable where the new appointee is ineligible for the reason that he has not passed the civil service examination required by law. • Appeal by 0. IT. La Grange and others, comjiosing the board of fire commissioners of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of April, 1896, granting a peremptory writ of mandamus command-, ing them to restore the relator to the position of clerk of the second grade held and occupied by him in the fire department of the city of New York previous to the 30th day of November, 1895. William L. Findley, for the appellants. R. D. Hatch, for the respondent. [MAJORITY — Patterson, J.:] Patterson, J.: There was abundant evidence produced in the court below to require the issuance of the peremptory writ of mandamus in this matter. The only question before the court was whether the action of the commissioners of the fire department in discharging the relator was a legitimate exercise of the power they possessed to abolish the office he held and thereby dispense with his services, or was a mere pretext to remove him in order that they might put some- one in his place. It is manifest that the relator was discharged on the mere pretense that his office was to be abolished, and a man named IVIcLewee was immediately assigned to do the same work that the relator had done. This man IVIcLewee had been an employee of the fire department, filling a place which had been abolished by a resolution of the board, which resolution remained unrescinded at the time this relator, was removed from his position, and it is painfully apparent that the relator was thrust-'aside simply for the purpose of retaining McLewee in the employment and under the pay of the hoard, although the place he had filled had been abolished. Not only was the alleged reason for the - discharge of the relator and the retention of McLewee (who was virtually a discharged employee) a mere sham, but McLewee was ineligible to fill the place even had the relator’s office been abolished, for he had not passed the civil service examination required bylaw, and in no sense could McLewee he regarded as a transferee from one position to another. The courts have the right to inquire into the good faith of" the action of the commissioners in a case of this kind, and the order. appealed from should be affirmed, with costs. Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred. Order affirmed, with costs.