260 A.D. 228 | N.Y. App. Div. | 1940
Petitioner, on March 1, 1928, after an examination was appointed city engineer of Elmira, in accordance with the Civil Service Law of the city and State. He served until May 9, 1935, when he was injured. While he was in the hospital his name was taken from the city payroll, and from and after March 20, 1936, he received a pension of $137.86 monthly from the New York State Retirement System. On May 1, 1936, he reported to the city manager that he was physically fit to resume his occupation. Three days later, the council of the city adopted a resolution by a vote of three to two abolishing the office. On July eighteenth following, the city department of civil service was notified by the Comptroller of the State that the medical board of the Retirement System had certified that petitioner was able to return to duty, and also that he desired to be placed on a preferred eligible list, which was done immediately. Since that time ■ he has appeared daily at the Municipal Building and asked for work. Coins C. Hunter was city manager from January 1, 1936, until February 15, 1937. He was an engineer by profession. For some time prior to his appointment as city manager, he had. been consulting engineer of the city, also of Chemung county. He testified that Thomas S. Supple assisted him in the county "work. “ Q. And was Mr. Supple working for you at that time under your direction? A. On the county payroll, yes. * * * Q. And when you took office as city manager January 1, 1936 you brought Mr. Supple right along with you? A. Yes. Q. And he came to the City Hall with you as your own assistant? A. He was appointed by the Council as engineering assistant to the City Manager.” On February 15,1937, Hunter was succeeded as city manager by Ralph D. Klebes. He continued Supple as a city employee under the title “ Engineering Assistant to the City Manager.” In February, 1937, the council of the city appointed John L. Berber as “ Consulting Engineer.” The term was to be two months and the salary $400 a month. He was working at the time of the trial, April 10, 1937. Supple is neither a licensed engineer of the State of New York nor qualified for a position under civil service in the city. Herber was a qualified engineer of Pennsylvania at the time of his appointment, but not of New York State, but he did obtain a license
“ Any person whose name has been placed on a preferred list * *■ * may maintain a mandamus proceeding for his re-instatement to the position from which he was separated or suspended, where it is shown that another person not appointed in accordance with the provisions of this chapter is employed in the same or a similar position, or assigned to or permitted to perform substantially similar duties or services theretofore performed by any such suspended employee.” (Civ. Service Law, § 31-b.)
Petitioner is entitled to a judgment and order of reinstatement in the city employment to perform services and work which he formerly did as city engineer which now are being performed by one or more persons illegally appointed.
The order should be reversed on the law and facts, with fifty dollars costs and disbursements, and prayer of the petition granted for an order directing reinstatement, with fifty dollars costs.
Crapser, Bliss, Heffernan and Foster, JJ., concur.
Order reversed on the law and facts, with fifty dollars costs and disbursements, and prayer of the petition granted for an order directing reinstatement, with fifty dollars costs.