Fornara v. Schroeder
| Decision Date | 11 April 1933 |
| Citation | 185 N.E. 498,261 N.Y. 363 |
| Parties | FORNARA v. SCHROEDER et al., Sanitary Commission of Department of Sanitation of City of New York. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Proceeding by Michael Fornara for an order of mandamus against William Schroeder, Jr., and others, constituting the Sanitary Commission of the Department of Sanitation of the City of New York. From an order of the Appellate Division (236 App. Div. 132, 258 N. Y. S. 480), unanimously reversing on the law and the facts an order of the Special Term granting a motion for a peremptory mandamus requiring petitioner's reinstatement to a position in the Department of Sanitation of the City of New York and dismissing the petition, petitioner appeals.
Order of the Appellate Division reversed, and that of the Special Term affirmed.
Appeal from Supreme Court, Appellate Division, First Department.
Samuel M. Ostroff and Charles L. Raskin, both of New York City, for appellant.
Arthur J. W. Hilly, Corp. Counsel, of New York City (J. Joseph Lilly, Henry J. Shields, and Rollin H. Reid, all of New York City, of counsel), for respondent.
William R. L. Cook, Jr., of Flushing, for Queens County Committee, the American Legion, Department of New York, amicus curiae.
Prior to December 1, 1929, the petitioner was employed as superintendent in charge of street cleaning in the borough of Queens, New York City. Theretofore the supervision and direction of street cleaning had been conducted as a part of the business of the borough president of the borough of Queens under the provisions of section 383 of the Greater New York Charter (Laws of 1901, c. 466, amended by Laws of 1921, c. 170). The sanitation department of the city of New York was created on December 1, 1929, by local law of that year, No. 13 of the municipal assembly. The bureau of street cleaning was included within that organization. The petitioner herein was continued in his old position pending a classification of the position for the new department. His original classification was in the exempt class, and, had he been continued as he desired, he would have continued to be in the exempt class. His request was approved by the municipal civil service commission, and, with the approval of the mayor, his position was classified in the exempt class. The resolution placing the petitioner in the exempt class was forwarded to the state civil service commission for approval. The state civil service commission refused to approve the same. A second time the resolution was submitted to the state civil service commission with a like result. Upon notification from the civil service commission that it refused to classify the petitioner's position in the exempt class, the defendant, by its assistant to the chairman of the sanitary commission,wrote the petitioner that his tenure of office would end on December 15, 1930. Thereupon the petitioner instituted the present proceedingasking for reinstatement upon the ground that, by virtue of section 22 of the Civil Service Law (Consol. Laws, c. 7), the petitioner, being a veteran of the World War, could not be removed from the position held by him, except after a hearing upon charges filed against him. The defendant contends that the provision of the statute upon which the petitioner relies furnishes him no aid, and that the refusal of the state civil service commission to classify the position as exempt prevents the continuation of the petitioner upon the pay roll of the city. The defendant also urges that the provisions of section 22 of the Civil Service Law are inapplicable, and that the petitioner was not removed within the scope of that section. We assume that he was properly appointed to the position of superintendent of street cleaning in the exempt class, and that he is not a ‘private secretary, cashier or deputy.'
The Appellate Division has held that petitioner is not protected from removal by reason of the provisions of section 22, above...
To continue reading
Request your trial
-
Amico v. Erie County Legislature
... ... Kenngott, 288 N.Y. 97, 41 N.E.2d 905; Matter of Sandford v. Finegan, 276 N.Y. 70, 11 N.E.2d 356; Matter ... Page 145 ... of Fornara v. Schroeder, 261 N.Y. 363, 185 N.E. 498; Matter of Kinsella v. Kern, 168 Misc. 847, 6 N.Y.S.2d 854, affd. 254 App.Div. 834, 6 N.Y.S.2d 334; Matter ... ...
-
Mandle v. Brown
...This is the effect of the holding in Cook v. Kern, 278 N.Y. 195, 15 N.E.2d 575, and the cases which preceded it (e. g., Fornara v. Schroeder, 261 N.Y. 363, 185 N.E. 498; Sandford v. Finegan, 276 N.Y. 70, 11 N.E.2d 356). When such valid reclassification has been effected, as pointed out in t......
-
Byrnes v. Windels
...in appointment, and 22 preventing removals except for cause after notice and hearing. This court held in Matter of Fornara v. Schroeder, 261 N. Y. 363, 185 N. E. 498, that section 22 applied as well to the exempt class as to the competitive, so that a person, serving in a position placed in......
-
Kover v. Westchester Community College
...e.g., Amico v. Erie County Legislature, 36 A.D.2d 415, 321 N.Y.S.2d 134, affd. 30 N.Y.2d 729, 332 N.Y.S.2d 898; Matter of Fornara v. Schroeder, 261 N.Y. 363, 185 N.E. 498). Conversely, if petitioner was appointed to a new position whose certification was then pending, he could not become en......