McCraw v. Finegan

243 A.D. 778

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1935
• Status: Published

Opinion

The petitioner applied for a peremptory or alternative order of mandamus to reinstate him in a position as attendant, grade 1, in the city service. He was temporarily dismissed from service due to lack of funds, and his name was placed on the preferred list as required by section 31 of the Civil Service Law. He was employed in the department of public markets. At the time he was suspended there was no other disabled war veteran junior as to service to the petitioner employed in that department, and no one has been employed to fill his position since. It is the petitioner’s claim that he is entitled to be transferred to some other department and therein given a position through the discharge of some employee junior in service or not a disabled war veteran. Order denying application for mandamus order unanimously affirmed, with costs, as a matter of law and not in the exercise of discretion. The petitioner has mistaken his remedy, for the reason that the president of the municipal civil service commission has no power of appointment, and it would be impossible for him to comply with any order directing petitioner’s reinstatement. Further than that, he is not entitled to appointment in other departments, particularly where the power of appointment is given to some other official. (Matter of Duffy v. O’Brien, 243 App. Div. 529.) Present — Lazansky, P. J., Hagarty, Tompkins, Davis and Johnston, JJ.