Mallen v. Morton
| Decision Date | 20 October 1949 |
| Citation | 88 N.E.2d 660,300 N.Y. 478 |
| Parties | James J. MALLEN, Respondent, v. Ferdinand Q. MORTON, et al., Constituting the Municipal Civil Service Commission for the City of New York, Appellants. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
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?'Order affirmed with costs. Question certified answered in the negative.
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