Matter of Folkes v. Hushion

29 N.E.2d 76, 283 N.Y. 536, 1940 N.Y. LEXIS 908

• Court: New York Court of Appeals
• Decided: July 24, 1940
• Status: Published

Opinion

Per Curiam.

A position is not effectively abolished where a person not appointed in accordance with the provisions of the Civil Service Law (Cons. Laws, ch. 7) is employed to perform the duties formerly performed by the holder of the position. The holder of such a position who has been suspended because no appropriation has been made for the payment of the salary attached to the position, is entitled to reinstatement in the same or similar position, at least from the date where, it appears, his salary can be paid, without requiring an appropriation of additional moneys. Proof of the existence since October 1, 1936, of a vacancy in a position of the same salary grade establishes that no new moneys need be appropriated in order to pay the salary attached to the position which the petitioner formerly held. The order of the Appellate Division directing that the petitioner should be reinstated as of that date in the position he formerly occupied or in a similar position, and should receive from that date compensation which he has lost, is correct, even though the petitioner could not be appointed to the vacant position.

The order should be affirmed, without costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Order affirmed.