Adams v. McKenzie

265 A.D. 170, 38 N.Y.S.2d 290, 1942 N.Y. App. Div. LEXIS 5708

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 1942
• Status: Published

Opinion

Per Curiam.

Though the personnel set-up as outlined by

respondents appears to be ideal for the proper functioning of the airport, we are nevertheless of the view that upon the petition, the answer and the affidavits, there is an issue of fact as to whether petitioners’ positions were abolished in good faith and as to whether there are positions of Airport Inspector in the department, the duties of which are being illegally performed by others. Accordingly, a trial of the issues should have been ordered.

If, upon the trial, it be resolved that the positions were abolished because they were unnecessary, due to the cessation of activities in the branch of the service in which petitioners were employed, then the disposition made at Special Term on the claims of petitioners Levy and Adams would be correct. On the other hand, if it be found that their positions have continued in existence, concededly they would be entitled to the salary differentials under section 245 of the Military Law (Cons. Laws, ch. 36).

The order should be reversed with twenty dollars costs and disbursements and the application granted to the extent of directing a trial of the issues herein.

Martin, P. J., Townley, G-lennon, Cohn and Callahan, JJ., concur.

Order unanimously reversed with twenty dollars costs and disbursements and the application granted to the extent of directing a trial of the issues herein. Settle order on notice.