In re Phelan

256 A.D. 164, 9 N.Y.S.2d 50, 1939 N.Y. App. Div. LEXIS 4667

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 20, 1939
• Status: Published

Opinion

Per Curiam.

In our opinion, upon the record before us, the discharged employee showed that his leaving his post and remaining away was justified upon the grounds of “ Assigned lunch hour ” and “ Personal necessity,” both of which justify leaving and absence without authorization from the acting chief inspector or other superior departmental official under the rules of the department of markets itself.

The commissioner, therefore, did not sustain the burden of proving the employee’s misconduct, which burden was imposed upon him by the provisions of section 22 of the Civil Service Law.

It follows, therefore, that the petition should be sustained, the determination of the commissioner annulled and the employee held to have been entitled to reinstatement as of February 11, 1938, with the full rights of his position, with fifty dollars costs and disbursements to the substituted petitioner.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

Determination unanimously annulled, with fifty dollars costs and disbursements to the substituted petitioner, and the employee held to have been entitled to reinstatement as of February 11, 1938, with the full rights of his position. Settle order on notice.