Berger v. Walsh
| Decision Date | 24 November 1943 |
| Citation | 291 N.Y. 220,52 N.E.2d 105 |
| Parties | BERGER et al. v. WALSH, Com'r of Fire Department, et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Proceeding in the matter of the motion of Isidore Berger and others for an order under Civil Practice Act, s 1283 et seq., against Patrick Walsh, as Commissioner of the Fire Department of the City of New York, and others, directing the appointment of petitioners as firemen in the Fire Department of the City of New York. From an order of the Appellate Division of the Supreme Court, 266 App.Div. 592, 42 N.Y.S.2d 582, as resettled by order entered July 27, 1943, which reversed, on the law, an order of the court at Special Term (Dineen, J.) denying the motion, the defendants appeal. The Appellate Division granted the motion and by the second decretal paragraph of its order directed that the defendant, as Commissioner of said Fire Department, ‘forthwith appoint each of the petitioners, not already appointed, to the position of fireman, in the Fire Department of the City of New York, effective as of the 16th day of September, 1942, and that the seniority and other rights of each of the petitioners shall be deemed operative from that date.’
Order of Appellate Division modified and proceeding remitted to Special Term with directions. Ignatius M. Wilkinson, Corp. Counsel, of New York City (Seymour B. Quel, Paxton Blair, and Harry Hollander, all of New York City, of counsel), for appellants.
David A. Savage and John F. O'Shea, both of New York City, for respondents.
The names of the petitioners, forty-eight in number, were certified by the Municipal Civil Service Commission as eligible for appointment as firemen in the city of New York. In making appointments from that list the Commissioner of the Fire Department, acting as he believed in the interest of administrative efficiency, passed over the names of the petitioners upon the ground that, although no one of them was then classified as 1-A under the Selective Training and Service Act of 1940, 50 U.S.C.A Appendix, s 301 et seq., the existing war emergency had created circumstances which made imminent their reclassification and induction into the nation's armed forces, thus making uncertain their availability for continued future service in the Fire Department.
In this proceeding by the petitioners to compel their appointment as firemen, we are in agreement with the order of the Appellate Division insofar as it gives effect to the ruling by that court that by failing to recognize and act upon the eligibility of the petitioners for appointment as firemen the Commissioner exceeded the discretionary power granted to him by section 246,...
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