MATTER OF MALLEN v. Morton

• Citation: 199 Misc. 805
• Parties: In the Matter of James J. Mallen, Petitioner,<BR>v.<BR>Ferdinand Q. Morton et al., Constituting The Municipal Civil Service Commission for the City of New York, Respondents.
• Decision Date: 05 July 1950
• Court: United States State Supreme Court (New York)

199 Misc. 805

In the Matter of James J. Mallen, Petitioner,

v.Ferdinand Q. Morton et al., Constituting The Municipal Civil Service Commission for the City of New York, Respondents.

July 5, 1950.

Leo Brown and Robert A. Schaffer for petitioner.

John P. McGrath, Corporation Counsel (Saul Moskoff of counsel), for respondents.

DI FALCO, J.

A proceeding was instituted by petitioner, pursuant to the provisions of article 78 of the Civil Practice Act, for an order compelling respondents, the municipal civil service commission for the city of New York, to declare petitioner eligible for and to give him a special promotion examination, as provided by subdivision 5 of section 246 of the Military Law, for the position of executive officer in the department of parks, comparable to the examination held on July 6, 1944, for this position, at which time petitioner was in the military service. The proceeding was opposed by the commission on the grounds (1) that petitioner did not meet the eligibility requirements of the notice of examination, and (2) that the proceeding was barred by the four-month limitation period provided by section 1286 of the Civil Practice Act. Heretofore, Mr. Justice HAMMER, at Special Term where this proceeding originated, determined that triable issues of fact were presented and directed that the issues be tried by the court without a jury, pursuant to section 1295 of the Civil Practice Act. On appeal by the commission, this determination was affirmed 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 qualifications and experience sufficient to meet the terms and requirements of the advertisement, i.e., did petitioner have the responsibilities equal to or greater than those of persons in charge of the division of design and construction, division of maintenance and operation, or the division of audit and control; (2) were the notifications to petitioner dated October 15, 1946, and April 3, 1947, such determinations as barred this proceeding pursuant to the four-month period of limitation prescribed by section 1286 of the Civil Practice Act?

The trial consumed six days, during which time the parties presented to the court an exhaustive, thorough, and vigorously contested inquiry into the issues. The record consists of 666 pages of testimony in addition to voluminous exhibits in evidence. To quote or recite pertinent portions of the testimony or evidence would be burdensome and repetitious. It is not my purpose to enter into an extended discussion of the conflicting claims, evidence and authorities involving questions having a greater or less bearing upon the issues. However, certain facts predominate and have persuasive bearing upon my determination of the controverted issues herein.

The petitioner is an engineer by education and professional training. He entered the competitive civil service of New York City in 1927 and subsequently, as a result of various competitive civil service examinations, was appointed to the position of park director in the department of parks in June of 1936. He held such position until November, 1943, when he entered military service, commissioned as a captain in the army. On June 30, 1946, he was honorably discharged with the rank of major. In August, 1946, he was restored to duty and assigned as park director in charge of the borough of Richmond. He still occupies that position.

On April 25, 1944, while petitioner was absent, on military duty, the commission ordered a promotion examination for executive officer in the department of parks and published a notice of examination.

On May 25, 1944, the commission wrote petitioner advising him of the examination and that he could take a special promotion examination upon his release from military service if he were otherwise eligible. On September 12, 1946, shortly after his return to duty as a park director in the department of parks, petitioner did file his application on the forms prescribed by the commission for leave to take an examination for promotion to the position of executive officer in the park department comparable to the promotion examination for that position held July 6, 1944, at which time petitioner was absent on military duty. On October 16, 1946, he received an official form of notice, authorized for use by the commission, dated October 15, 1946, that he was not qualified under the terms of the advertisement to take the aforesaid examination. On December 12, 1946, petitioner filed a notice of appeal from the aforesaid ruling which was referred to the committee on manifest errors pursuant to paragraph 5 of section V of rule V of the Rules of the Municipal Civil Service Commission. On April 4, 1947, petitioner received a letter advising him that his appeal had been unanimously denied by the four persons comprising the committee on manifest errors, who reported "no manifest error". The letter further informed petitioner that "under the Rules, which are law, the Commission must accept that report". This letter is dated April 3, 1947, and is on the form letterhead of the city of New York municipal civil service commission, signed by S. H. Galston, director, examining division.

Subsequently, petitioner's then attorney, by letter to the commission, dated June 24, 1947, challenged the applicability of the validity of paragraph 5 of section V of rule V as well as the finality of the action of the committee on manifest errors. Finally, the commission, by letter dated July 3, 1947, denied said attorney's application on behalf of petitioner. Thereupon petitioner, on October 24, 1947, instituted this proceeding.

At this juncture of facts and events I am first going to pass upon the technical objection to the proceeding which has been raised by respondent, viz., that the proceeding was not commenced within the four months' limitation period prescribed by section 1286 of the Civil Practice Act. Determination of this objection is also made so that there may be finality to this decision.

As stated, Special Term granted the application herein to the extent of directing the issues be tried by the court without a jury, and held that, with respect to the objection that the application is barred by section 1286 of the Civil Practice Act, the validity of the said defense was "at least open to question as an issue of fact in view of the Commission's letter of July 3, 1947, in answer to that of June 24, 1947 of petitioner's attorney. * * * Under all the circumstances disclosed by the papers on both sides, it appears that this issue should not be decided on the motion papers but reserved for determination upon a formal hearing." (Matter of Mallen v. Morton, 86 N. Y. S. 2d 147, 149, supra.) On appeal from this phase of the holding, the Appellate Division affirmed, one justice having dissented and voted "to reverse and dismiss the proceeding on the ground that it was not timely brought as the four month limitation should run from April 3, 1947." (275 App. Div. 918; italics supplied.) Thereupon a motion for leave to appeal to the Court of Appeals was granted by the Appellate Division (275 App. Div. 937) which certified the following question of law to the Court of Appeals for review: "Should the defendant's 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?" The Court of Appeals (300 N.Y. 478) affirmed the holding below and answered the question certified in the negative.

Regarding this issue I find the following significant evidence has been produced before me. Petitioner's Exhibit 7 is the original notification from the commission to petitioner that he was not qualified under the terms of the advertisement. This notice is dated October 15, 1946. Upon receipt of same petitioner appealed and subsequently received a letter, dated April 3, 1947, on the form of the respondent commission, that his appeal had been denied. This letter is petitioner's Exhibit 9 in evidence. Sidney Stern, a civil service examiner, testified on behalf of the respondent with respect to the practice, procedure and rules followed by the commission in arranging for promotion examinations. His testimony reveals that when the examiners find a candidate not to be qualified, they so notify him on a form which he had originally signed (Petitioner's Exhibit 7 here). He may then make an appeal, under the rules, to the committee on manifest errors. In the event of their unanimous denial of the appeal, the rule prescribes that that ends the appeal and that is the practice of the commission. This testimony of Stern is uncontradicted by petitioner and is of persuasive weight regarding the issue discussed. The rule referred to is rule V (§ V, par. 5) of the rules of the municipal civil service commission, and reads as follows: "No test paper or any part thereof and no record of the result of a physical test, or any other record or statement rated as part of an examination, or in connection therewith, shall be subject to review, alteration or rerating after the marks of the examiners have been registered or attested as required hereunder; except that the Commission, at any time within a year from the date of the promulgation of an eligible list, may correct any manifest error or mistake of marking or rating appearing in any such paper or record, the nature of which error or mistake it shall set forth in its minutes. Where an application for a correction in rating is requested under the foregoing provisions, such application shall be referred to a `Committee on Manifest Errors,' consisting of three members appointed by the Commission. Such Committee shall inquire into the merits of each...