Fusco v. Moses

279 A.D. 737, 108 N.Y.S.2d 831, 1951 N.Y. App. Div. LEXIS 3599

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1951
• Status: Published

Opinion

Callahan, J.

(dissenting). I cannot see that there was such interference with the petitioners’ right to counsel as to warrant the relief afforded by restoration to their civil service status. Berninger’s visit to the attorney’s office was his individual act not performed at the instance or with the knowledge of the authority. The latter made no use of any information obtained at the attorney’s office. Guilt was abundantly established by evidence of conduct preceding the wrongful visit. Thus, the merits of the proceeding were in no way affected by the mistaken actions of Berninger.

The petitioners were offered the right to secure new counsel, which they declined. The same counsel continues to represent them here. I think that we are unduly extending the statutory right to a hearing to permit the present occurrence to block the removal of dishonest employees.

I vote to reverse the order and dismiss the petition.

Peek, P. J., Glennon, Van Voorhis and Shientag, JJ., concur in decision; Callahan, J., dissents and votes to reverse and dismiss the petition, in opinion.

Order offirmed, with $20 costs and disbursements to petitioners-respondents. No opinion. [200 Misc. 196.] [See post, p. 791.]