Butler v. Finegan

• Decision Date: 10 December 1935
• Citation: 269 N.Y. 587,199 N.E. 684
• Parties: In the Matter of Manning J. BUTLER, Respondent, against James E. FINEGAN et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants.
• Court: New York Court of Appeals Court of Appeals

269 N.Y. 587

199 N.E. 684

In the Matter of Manning J. BUTLER, Respondent, against James E. FINEGAN et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants.

Court of Appeals of New York.

Dec. 10, 1935.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (244 App.Div. 829, 280 N.Y.S. 1014), entered May 24, 1935, which unanimously affirmed an order of Special Term granting a motion by petitioner for a peremptory order of mandamus to compel the appellants, the municipal civil service commission of the city of New York, to correct the civil service record of the petitioner so as to accord to him a date of original appointment in the competitive classified service for all purposes whatsoever as of October 12, 1922. On October 12, 1922, the petitioner received a permanent appointment in the civil service as assistant engineer, grade C, in the board of water supply of the city of New York. On June 7, 1924, he resigned from that position, but on December 29, 1924, he was reinstated in his position as assistant engineer in the office of the president of the borough of Queens. On May 1, 1925, he vacated such position by accepting a temporary emergency appointment to the position of topographical draftsman, grade D, in the office of the president of the borough of Queens, and served in various positions in such office under successive temporary appointments until July 15, 1927. All such emergency temporary appointments were not made from an eligible list. On July 16, 1927, he received a permanent appointment as a topographical draftsman, grade D, in the office of the president of the borough of Queens. At the time of making the motion herein the petitioner was employed as a permanent civil service appointee in the same office, although in a higher position. The appellants contended that July 16, 1927, was the correct and proper date to accord to the petitioner as the original date of appointment within section 31 of the Civil Service Law (Consol.Laws, c. 7). The Special Term, in granting the motion, cited Matter of Spivak v. Delaney, 264 N.Y. 491, 191 N.E. 530.

Paul Windels, Corp. Counsel, of New York City (Edmund L. Palmieri, Paxton Blair, and Arthur B. Hoff, Jr., all of New York City, of counsel), for appellants.

Albert de Roode, of New York City, for respondent.

PER CURIAM.

Order affirmed, with costs.

CRANE, C. J., and LEHMAN, HUBBS, CROU...