Metro. Life Ins. Co. v. Boland

Citation281 N.Y. 357,23 N.E.2d 532
PartiesMETROPOLITAN LIFE INS. CO. v. BOLAND et al. (REAVY et al., Interveners).
Decision Date14 November 1939
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, First Department.

Proceeding in the matter of the Application of the Metropolitan Life Insurance Company for an order against John P. Boland and others, constituting the New York State Labor Relations Board, and another, to vacate and set aside an order of the board appointing a trial examiner, wherein Grace A. Reavy and others, constituting the Civil Service Commission of the State of New York, intervened. From an order of the Appellate Division, 257 App.Div. 950, 14 N.Y.S.2d 147, which affirmed an order of Special Term denying petitioner's motion, petitioner appeals.

Orders reversed, and motion granted.

Samuel Seabury, of New York City, for appellant.

John J. Bennett, Jr., Atty.Gen., (Henry Epstein, Sol. Gen., of counsel), and Ralph T. Seward, Eugene Cotton, Bernard Jaffe, and David Scribner, all of New York City, for respondents.

PER CURIAM.

For the purpose of conducting a hearing on a charge of violation by appellant of the provisions of the New York State Labor Relations Act, L. 1937, ch. 443, Consol. Laws c. 31, Labor Law, s 700 et seq., the Labor Relations Board appointed a trial examiner upon his certification by the Civil Service Commission after exemption from competitive examination under the provisions of section 15 of the Civil Service Law, Consol. Laws, ch. 7, and section 9 of rule VIII of the Rules for the Classified Civil Service, McKinney Consol. Laws, Book 9, Appendix. It was assumed by the Board and by the Civil Service Commission that the appointment was to be made in accordance with and by the authority of the Civil Service Law and the rules and regulations of the Commission.

Appellant appeared specially and objected to proceeding before the appointee on the ground that his appointment was illegal and not made in accordance with the provisions of the Labor Relations Act. Upon the objection being overruled, appellant brought this proceeding under article 78 of the Civil Practice Act of vacate and set aside the order of the Board appointing and designating the examiner to conduct the hearing, to restrain the appointee from conducting the hearing and the Board from conducting the hearing before any person other than a member of the Board or a person appointed by the Board from an eligible list promulgated by the Civil Service Commission as a result of competitive examination held pursuant to the Civil Service Law and rules as required by section 702, subdivision 5, of the Labor Law, Consol. Laws ch. 31. Appellant was defeated at Special Term as matter of law and not in the exercise of discretion and orders upon its decision were affirmed by the Appellate Division by a divided court. Pending final decision, hearings before the appointee have been stayed.

Trial examiners are to be appointed by the Board (Labor Law, s 702, subd. 4) ‘from eligible lists to be promulgated by the civil service commission as the result of competitive examinations held pursuant to the civil service law and rules and on the basis of training, practical experience, education and character, provided, however, that special consideration and due weight shall be given to the practical training and experience which a person may have for the particular position involved regardless of academic training. Promotions, suspensions, and removals of persons appointed from such lists shall be in accordance with the provisions of the civil service law’ s 702, subd. 5.

The wording of the section is unambiguous and shows the purpose and intent of the Legislature to permit the Board to appoint a trial examiner only from a list promulgated by the Civil Service Commission after and as a result of competitive examination. Such a construction is reinforced by the fact that the statute exempts the executive secretary and attorneys for the Board and that a distinction is made between the appointment of an examiner and promotions, suspensions and removals of persons appointed from such lists. The Legislature states that appointments of examiners must be made from lists made up through competitive examinations but that promotions, suspensions and removals ‘shall be in accordance with the provisions of the civil service law.’ It is further confirmed by the...

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