Spivak v. Delaney

• Decision Date: 20 March 1934
• Citation: 191 N.E. 530,264 N.Y. 491
• Court: New York Court of Appeals Court of Appeals
• Parties: In the Matter of William SPIVAK, Respondent, v. John H. DELANEY et al., Constituting the Board of Transportation of the City of New York, Appellants.

264 N.Y. 491

191 N.E. 530

In the Matter of William SPIVAK, Respondent,

v.John H. DELANEY et al., Constituting the Board of Transportation of the City of New York, Appellants.

Court of Appeals of New York.

March 20, 1934.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the First Judicial Department (240 App. Div. 806, 266 N. Y. S. 946), entered October 6, 1933, which unanimously affirmed an order of Special Term granting a motion by petitioner for a peremptory order of mandamus to compel the defendants to restore the petitioner to his position as assistant engineer in the board of transportation of the city of New York at the same annual salary to which he was entitled as of December 31, 1932, or to transfer him to such other position at the same salary as he was fitted to fill, and to pay to petitioner arrearages in salary during his alleged illegal suspension. The petitioner was appointed permanently on May 9, 1924, to the position of junior assistant in the transit commission; on July 1, 1924, he was transferred to the board of transportation; on December 23, 1924, his title was changed to engineering assistant; on November 30, 1925, he resigned; and on December 1, 1925, he received a temporary appointment to the position of junior engineer pending the promulgation of an eligible list. Having secured a place on such list, he was appointed on May 1, 1926, to the position of junior engineer, and this appointment became permanent after the three months' probationary period. On May 16, 1931, he was promoted to the position of assistant engineer, and on December 6, 1932, he was relieved from duty on account of lack of work. The principal contention of petitioner was that his entry into the civil service antedated that of others of his grade who were retained, and that therefore he had been laid off contrary to the provision of section 31 of the Civil Service Law (Cons. Laws, c. 7) requiring suspension to be made ‘in the inverse order of original appointment in the service.’ The question was whether his resignation on November 30, 1925, to enable him to accept a new position broke the chain of continuity of service and required that the date of his ‘original appointment’ be construed as the date of his subsequent appointment on May 1, 1926, from an eligible list. The Special Term held that within the intent of section 31 of the Civil Service Law the petitioner's ‘original appointment in the...