Mallen v. Morton

CourtNew York Court of Appeals
Citation88 N.E.2d 660,300 N.Y. 478
Decision Date20 October 1949
PartiesJames J. MALLEN, Respondent, v. Ferdinand Q. MORTON, et al., Constituting the Municipal Civil Service Commission for the City of New York, Appellants.

300 N.Y. 478
88 N.E.2d 660

James J. MALLEN, Respondent,
v.
Ferdinand Q. MORTON, et al., Constituting the Municipal Civil Service Commission for the City of New York, Appellants.

Court of Appeals of New York.

Oct. 20, 1949.


Appeal from Supreme Court, Appellate Division, First Department, 275 App.Div. 918, 90 N.Y.S.2d 685.

Proceedings in the matter of the application of James J. Mallen, petitioner, for an order under the Civil Practice Act, s 1283 et seq., against Ferdinand Q. Morton and others, constituting the Municipal Civil Service Commission for the City of New York for an order directing the Commission to give the petitioner, pursuant to Section 246, subd. 5 of the Military Law, Consol.Laws, c. 36, a special promotion examination for position of executive officer in the New York City Park Department.

The special promotion examination sought was to be comparable to the promotion examination held on July 6, 1944 at which time the petitioner was concededly absent and prevented from taking the examination by virtue of overseas duty in the military service. The answer and affidavits of the respondents presented two objections to the granting of the application. First, that petitioner did not have the executive experience required by the Commission to be eligible to compete in the promotion examination for executive officer as specified in the notice of examination published. Second, that the proceeding by petitioner was not instituted within the four month period of limitation prescribed by Section 1286 of the Civil Practice Act.

A motion by petitioner to strike allegations of the answer as sham was denied by the Special Term, Sup., 86 N.Y.S.2d 147, and application was granted to the extent only that issues were to be tried by the court without a jury. Order of the Special Term was affirmed by the Appellate Division, 275 App.Div. 918, 90 N.Y.S.2d 685. Peck, P. J., dissented and voted to reverse and dismiss the proceeding on the ground that it was not timely brought. Motion for leave to appeal to the Court of Appeals was granted, 275 App.Div. 937, 90 N.Y.S.2d 920, and the commissioners appeal.

The following question was certified: ‘Should the defendants' affirmative defense have been sustained and the proceeding dismissed on the ground that it was not commenced within the four months period of limitation prescribed by Section 1286 of the Civil Practice Act?'

[88 N.E.2d 660]

Order affirmed with costs....

To continue reading

Request your trial
4 practice notes
  • MATTER OF MALLEN v. Morton
    • United States
    • United States State Supreme Court (New York)
    • July 5, 1950
    ...by the Appellate Division and by the Court of Appeals (Matter of Mallen v. Morton, 86 N. Y. S. 2d 147, affd. 275 App. Div. 918, affd. 300 N.Y. 478). Thereafter, the proceeding was assigned for trial before me and the following issues were presented for determination: (1) Were petitioner's q......
  • Estate of Stinchcomb, Matter of, Nos. 58383
    • United States
    • Supreme Court of Oklahoma
    • December 20, 1983
    ...In holding that the contents of the box did not become the property of the wife after the husband's death, the court stated 88 N.E.2d at 660: "The recital of the capacity in which parties rent a safety deposit box from a bank does not express an intention to make a joint tenancy of its......
  • Petition of Stylemaster Dept. Store, Inc.
    • United States
    • United States State Supreme Court (New York)
    • May 26, 1955
    ...by the respondents. Cash v. Bates, 301 N.Y. 258, 93 N.E.2d 835; Toscano v. McGoldrick, 300 N.Y. 156, 89 N.E.2d 873; Mallen v. Morton, 300 N.Y. 478, 88 N.E.2d 660; Millicker v. Board of Education of Central School Dist. No. 1, etc., 300 N.Y. 634, 90 N.E.2d 492; Foy v. Brennan, 285 App.Div. 6......
  • Charles Miller Coat Co. v. Myron Herbert, Inc.
    • United States
    • United States Court of Appeals (New York)
    • October 20, 1949
    ...question was certified: ‘Should the matter contained in the second affirmative defense of the defendant's answer be stricken as sham?' [88 N.E.2d 660] Order affirmed with costs. Question certified answered in the negative. All...
4 cases
  • MATTER OF MALLEN v. Morton
    • United States
    • United States State Supreme Court (New York)
    • July 5, 1950
    ...by the Appellate Division and by the Court of Appeals (Matter of Mallen v. Morton, 86 N. Y. S. 2d 147, affd. 275 App. Div. 918, affd. 300 N.Y. 478). Thereafter, the proceeding was assigned for trial before me and the following issues were presented for determination: (1) Were petitioner's q......
  • Estate of Stinchcomb, Matter of, Nos. 58383
    • United States
    • Supreme Court of Oklahoma
    • December 20, 1983
    ...In holding that the contents of the box did not become the property of the wife after the husband's death, the court stated 88 N.E.2d at 660: "The recital of the capacity in which parties rent a safety deposit box from a bank does not express an intention to make a joint tenancy of its......
  • Petition of Stylemaster Dept. Store, Inc.
    • United States
    • United States State Supreme Court (New York)
    • May 26, 1955
    ...by the respondents. Cash v. Bates, 301 N.Y. 258, 93 N.E.2d 835; Toscano v. McGoldrick, 300 N.Y. 156, 89 N.E.2d 873; Mallen v. Morton, 300 N.Y. 478, 88 N.E.2d 660; Millicker v. Board of Education of Central School Dist. No. 1, etc., 300 N.Y. 634, 90 N.E.2d 492; Foy v. Brennan, 285 App.Div. 6......
  • Charles Miller Coat Co. v. Myron Herbert, Inc.
    • United States
    • United States Court of Appeals (New York)
    • October 20, 1949
    ...question was certified: ‘Should the matter contained in the second affirmative defense of the defendant's answer be stricken as sham?' [88 N.E.2d 660] Order affirmed with costs. Question certified answered in the negative. All...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT