Rosengarten v. Knapp

236 A.D. 743 | N.Y. App. Div. | 1932

On the appeal of the petitioner, order, in so far as it denies motion for peremptory mandamus, unanimously affirmed, without costs. On the appeal of Knapp, as director, etc., from so much of the order as grants an alternative mandamus, the order is reversed on the law and the facts and alternative mandamus denied, without costs. There is no basis for a trial of the so-called issues presented by the petition and the answering affidavit. The charges upon which the removal was based are substantial (People ex rel. Rudd v. Cropsey, 173 App. Div. 714; affd., sub nom. People ex rel. Rudd v. Lewis, 219 N. Y. 641; People ex rel. Lawson v. Coler, 40 App. Div. 65; affd., on opinion below, 159 N. Y. 569; Matter of McGuire, 157 App. Div. 351; affd., 209 N. Y. 597), and a judicial review is not permitted (People ex rel. Kennedy v. Brady, 166 N. Y. 44, 47). If the statute^* has been complied with and charges of substance have been duly served and the employee afforded an opportunity to explain them, as was here the case, a jury may not be called upon to determine an alleged issue of fact involving the sufficiency of the charges or the motives of the removing officer. (Matter of Dunphy v. Kingsbury, 173 App. Div. 49, 55, 56.) Lazansky, P. J., Young, Kapper, Carswell and Tompkins, JJ., concur.

* See Civ. Serv. Law, § 22, subd. 2, as amd. by Laws of 1924, chap. 612.— [Rep. '