Cummings v. Ingersoll

243 A.D. 811

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1935
• Status: Published

Opinion

Order denying petitioner’s motion for a mandamus order reversed on the law, with costs, and petitioner’s motion granted, in the exercise of discretion, to the extent of allowing an alternative mandamus order for a trial of the questions of fact presented by the twenty-first and twenty-third paragraphs of the petition and the denials of the allegations thereof by the respondent, and also as to the allegations of the petition and the denials of the answer of the respondent in respect thereto, as to the character of the work performed and the salaries received by the petitioner and the engineer assistants described in the twenty-first paragraph of the petition. The petitioner is entitled to a determination of these issues. Lazansky, P. J., Tompkins and Davis, JJ., concur; Hagarty and Johnston, JJ., dissent and vote to affirm.