186 Misc. 808 | N.Y. Sup. Ct. | 1946
This is an application for relief under article 78 of the Civil Practice Act.
The petitioners specifically assert that on June 20, July 23 and July 26,1945, which were rainy days, they were not assigned to work while the per annum men worked; that this action on the part of the respondents in hot permitting them to work and receive per diem compensation on those days was willful, that it violated the seniority rights of the petitioners and was also a violation of section 31 of the Civil Service Law.'
The respondents contend that these men are per diem employees and their pay has been fixed by the Board of Estimate. The current budget gives them a per diem compensation of $12.60 a day with a limitation of 180 days’ work for the budget year.
The claim that there has been a violation of section 31 is not borne out by the facts. The petitioners have not been discharged. There has been no separation from service through any means set out in the statute. The fact is that they are still employed in the position as bridge painters on a per diem basis.
The city pays these petitioners the prevailing rate on those days suitable for them to work at their trade. That it employs, on unsuitable days, others in the same category at different work, but not at bridge painting, is no basis for granting the relief sought here. The propriety or impropriety of such action on the city’s part is not an issue in this proceeding.
The motion is denied in all respects.