Cummings v. Ingersoll

258 A.D. 741, 15 N.Y.S.2d 106, 1939 N.Y. App. Div. LEXIS 6721

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 1939
• Status: Published

Opinion

In a proceeding for a mandamus order in which a reinstatement of the petitioner was sought, order dismissing petition on the merits unanimously affirmed, with costs, as a matter of law and not in the exercise of discretion. On a prior appeal, when the direction for the trial of certain issues of fact was made, it was the purpose of this court to enable the petitioner to have the benefit of a finding of fact, if the proof warranted it, that the same character of work was performed by the individuals who he claimed were his juniors and who were in the same salary grade as petitioner; If that appeared to be the fact, it was the intention that he should have the benefit of it despite his failure to allege that they were in the same salary grade. When it appeared affirmatively in the evidence that such was not the fact and that the individuals in question were in a different salary grade, the dismissal of the petition was proper under the decisions which require the seniority rule to be applied to individuals in each grade, which cases do not permit the extension of the seniority rule to a general classification of employees in disregard of salary grades. (Matter of Glisman v. Moses, 255 App. Div. 1020, and eases cited therein.) Present —■ Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ.