Barmonde v. Kaplan

241 A.D. 475, 273 N.Y.S. 668, 1934 N.Y. App. Div. LEXIS 8279

Opinion

Per Curiam.

On this appeal the appellants do not question the right of the petitioner to a peremptory mandamus order in so far as the same directs his reinstatement. They do, however, question his right to payment of back salary. Mandamus was a proper remedy in the first instance for the recovery of such salary. (Thoma v. City of New York, 263 N. Y. 402, 407; Matter of Arnow v. Delaney, 241 App. Div. 861.) Petitioner being entitled to reinstatement as of the date of his illegal suspension it was proper to award him back salary. (Matter of Kelly v. Board of Education, 234 App. Div. 239; affd., 259 N. Y. 518; Matter of Spivak, 240 App. Div. 806; affd., 264 N. Y. 491; Bradshaw v. City of Schenectady, 240 App. Div. 746; leave to appeal denied, 262 N. Y. 703.)

It follows, therefore, that the order so far as appealed from should be affirmed, with twenty dollars costs and disbursements.

Present'—Finch, P. J., Merrell, Martin, O’Malley and Untermyer, JJ.

Order so far as appealed from affirmed, with twenty dollars costs and disbursements.