DIGEST OF COURT DECISIONS

Amendments to Civil Service Law

Section 11. The classified city service. Amended by Laws 1921, Chap. 653, in effect May 7, 1921.

Section 21-A. Civil War Veterans; retirement; pensions. Amended by Laws 1921, Chap. 54, in effect March 9, 1921.

Section 21-b. Civil War Veterans; retirement; pensions. Added by Laws 1921, Chap 159, in effect April 4, 1921.

Section 22-b. Preference to veterans.

effect May 7, 1921.

Section 50. Definitions.

effect April 30, 1921.

Added by Laws 1921, Chap. 652, in

Subd. 8, amended by Laws 1921, Chap. 365, in

Section 53 (5). Allowance for service. Amended by Laws 1921, Chap. 365, in effect April 30, 1921.

Section 61. Refunds. New subdivision three (3), added by Laws 1921, Chap. 365, in effect April 30, 1921.

Section 62. Superannuation retirement. Amended by Laws 1921, Chap. 207, in effect April 20, 1921.

Section 71-a. Effect of election or appointment of beneficiaries to certain offices. Added by Laws 1921, Chap. 207, in effect April 20, 1921.

1. Section 22-A- Industrial Commissioner relieved from compliance with Suspension in inverse order of appointment.

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The provision of section 18 of the revised Labor Law (Laws of 1921, Chap. 50) as amended by Chapter 642 of the Laws of the same year that the Industrial Commissioner, notwithstanding any other general or special law, saving and excepting section 22 of the Civil Service Law, may remove any employee in the department," relieves said commissioner from complying with the requirement of section 22-A of the Civil Service Law, directing that suspension be made in the inverse order of appointment. of Fox v. Sayer, 116 Misc. Rep. 699.)

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2. Suspension from position of factory inspector

(Matter

Petition for reinstate

ment denied but without prejudice.

The reason assigned for the suspension of relator from his position of factory inspector in the department of labor was that the reduced appropriation for the department for the current year necessitated a reduction in the number of factory inspectors. Relator's petition for a peremptory writ of mandamus to compel his reinstatement alleged that when he was laid off, other factory inspectors who had been appointed more recently than he, were retained, and that at the time his services were discontinued one P. was appointed a factory inspector to take his place. A denial of these allegations was coupled with allegations that P. was already in the department

as a factory inspector, that he was notified of his suspension as such at the same time as petitioner but upon discovery that the appropriation was sufficient to warrant his retention the notice to P. was withdrawn before it took effect. Held, that petitioner had no ground for complaint and his application will be denied but without prejudice to a motion for an alternative writ of mandamus. (Matter of Fox v. Sayer 116 Misc. Rep. 699.)

Classifications

1. Enumeration in a schedule not a condition precedent to appointment. Classification in the civil service has two meanings, one primary and the other secondary. The primary meaning is that indicated in the Civil Service Law and imports a division of offices and employments into those where competitive examination is necessary or practicable and those where it is not. The secondary meaning is the mere arrangement or enumeration in a schedule of the title of positions whose quality, as competitive or the opposite, has already been determined. (Story v. Craig, 231 N. Y. 33, rev'g 191 App. Div. 914.)

2. Failure of appointing power to incorporate titles of positions in schedule no ground for ouster of employees.

Classification having been effected in the only sense essential to determine merit and fitness by competitive examination, and in the only sense that would be necessary if the positions were in the State service rather than in the service of the city, the rules of the local commission do not make a condition precedent of something which in its nature is a mere dictate of convenience or a mere requirement of form. Doubt, however, if it might otherwise exist, is dispelled by a practical construction that is continuous and uniform. Held, accordingly, that an assistant chief examiner and a first assistant chief examiner in the city of New York did not forfeit their positions, to which they had been appointed after competitive examinations, because the titles of the positions were not included in the schedule. (Story v. Craig, 231 N. Y. 33, rev'g 191 App. Div. 914.)

Eligible List

SEE RULES

1. Special agent·

Excise Department

Probationary appointment Not protected by section 22 The term of employment of a special agent in the Excise Department who was not appointed for any definite term beyond the probationary period and who is not protected by section 22 of the Civil Service Law was terminated by a letter written to him by the State Commissioner of Excise as follows: "I herby notify you that no appropriation was made for your salary as

special agent or for that of any other special agent in this department after March 31, 1920." (Heinemann v. State of New York, 198 App. Div. 63.)

2. Power of Commission under Liquor Tax Law, section 7.

The Commissioner has power under section 7 of the Liquor Tax Law to hire and discharge special agents at will. (Heinemann v. State of New York. 198 App. Div. 63.)

Lackawanna (City of)

SEE MANDAMUS, 4.

Liquor Tax Law

SEE EXCISE DEPARTMENT

Mandamus

1. Exempt fireman - Sections 22, 22-a of Civil Service Law· Mandamus to compel reinstatement · - Second Class Cities Law, section 90

After a competitive examination relator on June 18, 1912, was duly appointed a foreman in the department of public works of the city of Yonkers, and continued in that position until January 24, 1921, when he received notice from the commissioner of public works that his services would be no longer required on account of lack of funds, and he was not transferred to any other branch of service. Upon the hearing of an application for a peremptory writ of mandamus to compel his reinstatement, it was not made to appear that his name was certified for reappointment under section 22-a of the Civil Service Law, added by chapter 836 of the Laws of 1920, in effect May 19, 1920, and the fact that he is an exempt fireman was denied. Held, that in accordance with legislative intent the commissioner's power of appointment under section 90 of the Second Class Cities Law may well be exercised under reasonable suggestions and limitations to said section of the Civil Service Law, and to section 22 thereof, as amended by Chap. 833 of the Laws of 1920, in effect May 19, 1920. (People ex rel. Reagon v. See, 116 Misc. Rep. 301.)

2. Alternative writ granted to ascertain whether relator was an exempt

fireman.

An alternative writ of mandamus will, therefore, be granted in order that it may be determined at the hearing whether relator is an exempt fireman or whether his position was dispensed with purely for questions of economy, and such other questions as on the settlement of the order to be entered hereon may be determined necessary. (Peo. ex rel. Reagon v. See, 116 Misc. Rep. 301.)

3. Salary paid to rival claimant Peremptory writ directing certification of name of petitioner on payroll denied.

A peremptory writ of mandamus will not be issued commanding the civil service commission of the city of New York to certify the name of the

petitioner on the payroll of the Municipal Court as assistant clerk, and directing the city comptroller to pay the salary, where it appears that a third person, a stranger to the proceeding, is a claimant also, and there is proof that said third person is the officer de facto, and it further appears that the comptroller has paid the salary to the rival claimant. Domschke v. Cukor, 194 App. Div. 755.)

4. Mandamus.

(Matter of

When writ will not issue to compel reinstatement of civil service employee alleged to have been illegally removed from the position of chief of the fire department of the city of Lackawanna. (Peo. ex rel. Downey v. Gibbons, 231

N. Y., aff'g 194 App. Div. 983.

New York City

1. Employee working on per diem basis suspended pending determination of criminal charges not entitled to pay during suspension

A stationary engineer employed by the city of New York on a per diem basis is not entitled to recover his wages during the period of his suspension without pay pending the outcome of criminal charges preferred against him on which he was tried and acquitted and thereafter restored to duty. (Mandeville v. College of the City of New York, 197 App. Div. 107.)

2. Greater New York charter, § 1569-a, when not applicable

Under section 1569-a of the Greater New York charter, which grants power to suspend an employee without pay "pending the hearing and determination of charges against him or the making of any explanation, as the case may be," the "charges" referred to are those which are to be heard and determined under the rules of the department in which the person is employed and not criminal charges pending in court, and, hence, the provision of said section that a suspended employee shall be entitled to full compensation from the date of suspension to the date of reinstatement, is not applicable. (Mandeville v. College of the City of New York, 197 App. Div. 107.)

3. Who may abolish position

In the absence of direct statutory provision to the contrary, a position in the civil service may be abolished only by the same agencies that created it. (People ex rel. Machen v. Hayes, 115 Misc. Rep. 373.)

4. When position in New York water supply, etc., department abolished

Technically such a position in the water supply, etc., department of the city of New York, as distinguished from the incumbent or the salary, is not abolished until appropriate action to that effect is taken by the commissioner of water supply, etc., and the board of aldermen. (People ex rel. Machen v. Hayes, 115 Misc. Rep. 373.)

5. Right of Civil war veteran under section 22-b

The sole test prescribed by section 22-b of the Civil Service Law for the right of a World war veteran who left his position in the civil service to enter the federal military service, to restoration, is that his former position must exist at the time of his discharge from the army. (People ex re!. Machen v. Hayes, 115 Misc. Rep. 373.