Bacom v. Conway

• Citation: 62 N.E.2d 55,294 N.Y. 245
• Parties: BACOM et al. v. CONWAY et al. (GERNERT et al., Interveners).
• Decision Date: 24 May 1945
• Court: New York Court of Appeals

294 N.Y. 245
62 N.E.2d 55

BACOM et al.
v.
CONWAY et al. (GERNERT et al., Interveners).

Court of Appeals of New York.

May 24, 1945.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceedings in the matter of the application of John A. Bacom and others for an order pursuant to Civil Practice Act, s 1283 et seq., against J. Edward Conway and others, constituting the State Civil Service Commission, and others, for an order determining that petitioners had a prior right to retain their positions as motor vehicle license examiners of the State Department of Taxation and Finance, wherein Frank Genert and others intervened. From an order of the Appellate Division of the Supreme Court in 267 App.Div. 1027, 48 N.Y.S.2d 145, which unanimously affirmed an order of the Special Court at Special Term, Foster J., 181 Misc. 599, 45 N.Y.S.2d 85, directing reinstatement of petitioners to positions as motor vehicle license examiners in the Bureau of the Department of Taxation and Finance of the State of New York, with back salary, less compensation received from other employment, on ground that petitioners had a prior right to such positions over the interveners, the interveners appeal.

Orders reversed and petitions dismissed.

[62 N.E.2d 56]

Seth T. Cole, of New York City, for interveners, appellants.

Nathaniel L. Goldstein, Atty. Gen. (Herman F. Nehlsen, of Binghamton, and Orrin G. Judd, of New York City, of counsel), for J. Edward Conway and others, constituting the State Civil Service Commission, and others, appellants.

Bernard Birnbaum, of New York City, for respondent.

CONWAY, Judge.

On April 1, 1943, both the petitioners and the interveners were occupying the positions of motor vehicle license examiners in the Motor Vehicle Bureau of the Department of Taxation and Finance. Effective on that day, a number of those positions were abolished and it became necessary to suspend a certain number of employees ‘in the inverse order of original appointment in the service,’ pursuant to the provisions of Civil Service Law, Consol. Laws, c. 7, section 31. We must determine whether the petitioners or the interveners have seniority. The interveners held the positions as result of a transfer from the Transit Commission in 1940. The petitioners were appointed to the positions from a competitive list a few months earlier in the same year. When the positions were abolished, the interveners were retained and the petitioners were suspended. The Appellate Division was of the opinion that our decision in Matter of Horn v. Gillespie, 267 N.Y. 333, 196 N.E. 205, was decisive of the issue and restored the petitioners to service. The appeal of the interveners is here by our permission.

The question presented for our consideration is, therefore, whether service with the former Transit Commission (Metropolitan Division of the New York State Department of Public Service) is State or city service. If the interveners, when occupying the positions of transit inspectors, later called transportation service inspectors, in the Transit Commission, were State employees, then they are senior in service to the petitioners. Were they in city service, that could not be added to State service to establish seniority. Matter or Eagan v. Livoti, 287 N.Y. 464, 40 N.E.2d 635.

Historically, the Transit Commission has always been a State agency. When the amendment to article V, section 2, of the New York State Constitution was adopted at the general election in 1925, provision was made for a Department of Public Service. The enabling act...