147 Misc. 154 | N.Y. Sup. Ct. | 1933
This is a proceeding for an order of mandamus directing John H. Delaney, as chairman of the board of transportation, to reinstate the petitioner to the position of structural steel draftsman, grade 3, or to transfer him to any other position he may be fitted to fill.
The petitioner is a citizen of the United States and of the State of New York and an honorably discharged veteran of the World War. He was employed in the classified civil service as structural steel draftsman, grade 3, until his discharge in January, 1932. The evidence establishes clearly that bis dismissal was due to the fact that his position, along with many others, was “ abolished for reasons of economy.” (Civ. Serv. Law, § 22.) The financial plight in which the city found itself as a result of the unprecedented economic depression now prevailing and the drastic economies made necessary as a consequence are too well known to require comment.
What the petitioner does claim is that on the abolition of his position he had the right, under section 22 of the Civil Service Law, to “ be transferred to any branch of the * * * service for duty in such position as he may be fitted to fill, receiving the same compensation therefor.” To quote from bis brief: “ The petitioner’s sole contention is, his position having been abolished and having been laid off from that position, he was entitled to a transfer pursuant to section 22 of the Civil Service Law.” He maintains that at and since the time of his removal there have been vacancies in the positions of junior electrical engineer, railroad, grade 3, and engineering assistant, grade 3, any of which he was and is fitted to fill.
For the purposes of this case it may be assumed that the evidence adduced by the petitioner as to the making of “ provisional ” appointments to positions other than that of structural steel draftsman, grade 3, indicates the existence of permanent vacancies in those positions, the reason for the provisional nature of the appointments being the inability to make permanent appointments because there were not enough persons on the eligible lists to fill the necessary positions. (See Civ. Serv. Law, § 15, subd. 1.) The mere existence of such vacancies does not, however, entitle the petitioner to be transferred to one of the vacant positions unless he is “ fitted to fill ” it. It is not enough that the petitioner may be as well qualified