Tormey v. La Guardia

• Decision Date: 18 October 1938
• Citation: 278 N.Y. 450,17 N.E.2d 126
• Parties: TORMEY et al. v. LA GUARDIA et al.
• Court: New York Court of Appeals Court of Appeals

278 N.Y. 450

17 N.E.2d 126

TORMEY et al.

v.LA GUARDIA et al.

Court of Appeals of New York.

Oct. 18, 1938.

Proceeding in the matter of the application of Edward F. Tormey, and others, for a peremptory mandamus order against Fiorello H. La Guardia, and others, directing the defendants to pay them at least the same salary as they had received before they were placed upon the preferred eligible list for re-employment after being laid off, from and after date on which local law relaing to reinstatement of employees from preferred lists went into effect. From an order of the Appellate Division, 254 App.Div. 722, 4 N.Y.S.2d 1000, affirming an order of the Special Term dismissing the petition, the petitioners appeal.

Order of the Appellate Division and that of the Special Term reversed, and matter remitted to the Special Term with directions.

FINCH, J., dissenting. Appeal from Supreme Court, Appellate Division, First department.

Irving Rivkin, of St. George, S. I., for appellants.

William C. Chanler, Corp. Counsel, of New York City (Samuel J. Silverman and Henry J. Shields, both of New York City, of counsel), for respondents.

RIPPEY, Judge.

Local Law No. 26 of 1937, to amend section 1543x of the Greater New York Charter (L. 1901, ch. 466) in relation to reinstatement of employees from preferred lists, the validity of which is not questioned in this proceeding, went into effect June 28, 1937, and reads as follows: ‘Reemployment of persons on preferred civil service lists.-Any persons in the service of the city re-employed or reinstated since January first, nineteen hundred thirty-three, to the same or similar position he formerly held in the same or any other department of the city from a preferred civil service list established pursuant to section thirty-one of the civil service law, shall on and after July first, nineteen hundred thirty-seven, receive at least the same salary such person received at the time his name was placed on such preferred list.’ See Administrative Code, New York City, p. 1170, § B40-6.1.

We cannot be interested in the policy of the legislation nor is its propriety open for consideration here. Its wording is plain and unambiguous. We cannot go back of the language used or, in the guise of construction, rewrite the law to make it something different than its wording plainly indicates.

On the 1st day of May, 1934, each of the petitioners was employed as inspector of regulating, grading and paving, grade 3, Bureau of Engineering, in the office of the President of the borough of Richmond, on an annual salary. Each was then laid off for lack of funds, effective as of that date. Pursuant to the requirements of the Civil Service Law (Consol.Laws, ch. 7), each was placed on the preferred eligible list for re-employment. On August 8, 1934, each was reappointed to the same position with the same duties at a per diem rate of $8.00 per day under a provision that total employment for a year should not exceed 250 days. Such employment has continued. The proceeding here is for an order directing the defendants to pay them at least the same salary as they received before they were placed upon the preferred list from and after the date on which the Local Law went into effect. The facts are not in dispute. The Special Term dismissed the petition on the ground that petitioners were reappointed on a different basis and did not bring themselves within the purview of the Local Law above referred to. The order thereupon entered was affirmed by the Appellate Division by a divided court.

The petitioners were not per diem employees at the time they were relieved from duty and placed on the preferred list.

On May 1, 1934, the petitioner Tormey was employed at an annual salary of $2,820 per year and each of the other two p...