Kearns v. Murray

240 A.D. 730

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1933
• Status: Published

Opinion

Order modified by striking out the first and last ordering paragraphs, and as so modified unanimously affirmed, with fifty dollars costs and disbursements against the appellant Murray, as commissioner. The appeal in so far as taken by the defendant Corbalis is dismissed, without costs, on the ground that said appellant is in default and said default has not been opened. There was default on the part of Corbalis, but there is no present right to relief as against him. In the main the same legal principles govern this case as are involved in Matter of Coyne v. Murray (ante, p. 728), decided herewith. The question to be determined on the hearing on the alternative order is whether the office which petitioner held was in fact and in good faith abolished in the interest of economy and the duties were charged on another or others in addition to those already being performed; or whether the office was abolished as a mere pretext to oust the petitioner and give the appointment to another. (See People ex rel. Davison v. Williams, 213 N. Y. 130.) In addition it must be determined whether petitioner was in the exempt class and entitled to hold the position or be transferred to any branch of the service for duty in such position as he may be fitted to fill, under the provisions of section 22 of the Civil Service Law. Present — Lazansky, P. J., Young, Scudder, Tompkins and Davis, JJ.