Opinion
Argued February 24, 1916
Decided March 21, 1916
Clarence U. Carruth, Edward Stetson Griffing and Charles J. Foltz for appellant.
Lamar Hardy, Corporation Counsel ( Terence Farley and Charles McIntyre of counsel), for respondent.
The probationary period for which the relator was appointed could be terminated under the rules of the municipal civil service commission only by notice from the appointing officer that his conduct or capacity was unsatisfactory to the officer, and for that reason he could not be retained in his position.
His retention in the service without that notice was equivalent to a permanent appointment. The appointing officer of the relator was the board of education, not the committee on supplies. The by-laws of the board of education which authorized the appointment of the relator by the committee on supplies, subject to the confirmation of the board, and which further empowered the committee to conduct all trials of the clerks and employees against whom charges were brought, and to report its conclusions to the board for action, plainly show that the committee on supplies had no independent power of removal.
The board of education by its by-laws jealously retained in its own hands the power of removal as well as the power of appointment. The notice necessary to terminate the relator's employment at the end of the probationary period was not complete until ratified by the board of education. Notwithstanding the action of the committee, the board still had the power to say that the relator should continue in service. In other words, the action taken to terminate the probationary period of the relator was not in accordance with the rules, and without that his retention in the service otherwise was equivalent to a permanent appointment.
The resolution that the board adopted on June 23, after the probationary period had expired, could not take effect retrospectively, because in the meantime the rights of the relator to the position had become fixed and determined. Where the right of a third person has thus intervened between an act and its ratification, the ratification is ineffective. ( Pickering v. Lomax, 145 U.S. 310; Cook v. Tullis, 85 U.S. [18 Wall.] 332; Catholic F.M. Society v. Oussani, 215 N.Y. 1.)
It follows that the relator was entitled to be reinstated in the position from which he was removed, and the order of the Appellate Division should, therefore, be reversed and the order of the Special Term affirmed, with costs.
WILLARD BARTLETT, Ch. J., CHASE, COLLIN, CARDOZO, SEABURY and POUND, JJ., concur.
Ordered accordingly.