In re Folkes

258 A.D. 1069, 16 N.Y.S.2d 755, 1940 N.Y. App. Div. LEXIS 8928

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 1940
• Status: Published

Opinion

The motion for reargument is referred to the court that rendered the decision on the appeal. Present — Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ. Motion for reargument denied, without costs. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ. On the court’s own motion the decision of this court, handed down December 26. 1939 [ante, p. 924], is hereby amended to read as follows: Final order of mandamus directing reinstatement of the respondent to a position in the department of finance, city of Yonkers, modified by inserting the words “ or the successor oficial ” after the words “ James E. Hushion, as Comptroller of the City of Yonkers, N. Y.,” in the decretal paragraph and by striking from the several parts of that paragraph the words “ January 1, 1934,” and substituting therefor in each instance the words “ October 1, 1936.” As thus modified the order is affirmed as a matter of law and not in the exercise of discretion, with costs to the respondent. Findings and conclusions inconsistent herewith are reversed and new findings and conclusions will be made. The court finds that neither the respondent’s position nor his duties were abolished in fact or in good faith; and that, eoneededly, a vacancy has existed in a grade 8 position since September 30, 1936. The court concludes that respondent is entitled to be reinstated, with back salary from October 1, 1936, less outside earnings from the same date. (Matter of Mullane v. McKenzie, 269 N. Y. 369; Matter of Garrett v. McDermott, 280 id. 820.) The equities between the petitioner, the City and the Retirement System can be adjusted on an accounting. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ. Settle order on notice.