Battaglia v. Morton

• Decision Date: 24 February 1949
• Citation: 298 N.Y. 868,84 N.E.2d 636
• Parties: Biagio BATTAGLIA, Respondent, v. Ferdinand Q. MORTON, Constituting the Municipal Civil Service Commission, Appellants.
• Court: New York Court of Appeals Court of Appeals

298 N.Y. 868

84 N.E.2d 636

Biagio BATTAGLIA, Respondent,

v.Ferdinand Q. MORTON, Constituting the Municipal Civil Service Commission, Appellants.

Court of Appeals of New York.

Feb. 24, 1949.

Appeal from Supreme Court, Appellate Division, First Department, 274 App.Div. 764, 80 N.Y.S.2d 727.

Proceeding in the matter of the application of Biagio Battaglia, petitioner, for an order under the Civil Practice Act, s 1283 et seq., against Ferdinand Q. Morton, president, Esther Bromley and Joseph A. McNamara, Commissioners, constituting the Municipal Civil Service Commission of the City of New York, respondents, for an order directing respondents to place petitioner's name on a special military eligible list for the position of city medical officer in accordance with Section 246, subd. 7, of the Military Law, Consol.Laws, c. 36, in the order of petitioner's original standing with due regard to petitioner's status as a war veteran. Before entering the armed forces, petitioner stood No. 19 on an eligible list for the position of city medical officer. That list expired on April 28, 1946, and petitioner did not get out of the armed services until July 1, 1946. While petitioner was in the military service and before the list had expired, the two men who followed him upon the list were certified for temporary positions of medical officer.

From an order of the Supreme Court, New York County, denying the petitioner's application, the petitioner appealed. The order was modified by the Appellate Division, 272 App.Div. 372, 71 N.Y.S.2d 380, by granting an alternative order so that a trial might be had on certain issues. Upon remand after a determination of the issues, the Supreme Court entered an order in favor of the petitioner, 190 Misc. 612, 76 N.Y.S.2d 205. The order in favor of petitioner was affirmed by the Appellate Division, 274 App.Div. 764, 80 N.Y.S.2d 727, and the respondents appeal.

PER CURIAM.

In the absence of an order by the Appellate Division or by this court granting the appellants leave to appeal, we may not review the order of the Appellate Division dated June 14, 1948, which affirmed unanimously the order of Special Term where in accord with the direction contained in the prior intermediate order of the Appellate Division dated June 24, 1947 certain issues of fact were tried and determined. Civil Practice Act, s 588, subd. 2; s 589, subd. 2, cls. (a), (b).

The appeal should be dismissed with costs.

Appeal dismissed with costs.

All...