Murphy v. Larkin

20 A.D.2d 595, 245 N.Y.S.2d 23, 1963 N.Y. App. Div. LEXIS 2656

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1963
• Status: Published

Opinion

Upon the prior appeal (17 A D 2d 87), we expressed our “ conclusion that petitioner was lawfully appointed to a permanent position in the competitive class” (p. 90) and while our opinion admitted the possibility of a determination that " petitioner’s appointment should be in the noncompetitive class ” (p. 91), in this case the distinction is not important if petitioner was a deputy, as Special Term has now found; this because both classes, competitive and non-competitive, are within the “ classified service ” (Civil Service Law, § 40) in which we found (p. 91) petitioner had “permanent * * R employment” (§ 75, subd. 1, par. [b]) and in which he would, as a veteran, be entitled to charges of misconduct and a hearing before removal, unless he was a “ deputy of any official or department” (par. [b], above cited). Conceding that, when appointed, he'was indeed a deputy, petitioner contends that he ceased to be such when, for a period prior to his dismissal, he was not permitted to perform any of the duties of a deputy but was limited to such work as the corporation counsel from time to time assigned him; but this, as we indicated in our prior opinion (p. 92), “has no relevancy on the question whether he was a deputy.” In any event, there was no change in title, classification or salary prior to petitioner’s dismissal and the evidence otherwise supports the Special Term finding. Order unanimously affirmed, without costs. Present — Bergan, P. J., Gibson, Herlihy, Reynolds and Taylor, JJ.