People ex rel. Tevlin v. Smith

228 A.D. 850

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1930
• Status: Published

Opinion

Peremptory mandamus order granting relator’s motion to direct defendant State Civil Service Commission to issue certificate showing the appointment and transfer of relator from chief detective to chief probation officer of the County Court modified so as to provide for an alternative mandamus order, and as thus modified unanimously affirmed, without costs. The determinative question as to whether or not the relator’s duties, performed by him as a detective, a county detective and chief county detective, are substantially identical with those required of a probation officer and a chief probation officer, is a subject of dispute between the parties by reason of the denials of the allegations to that effect contained in the answer of defendant State Civil Service Commission. (People ex rel. Corrigan v. Mayor, 149 N. Y. 215; People ex rel. Lodholz v. Knox, 58 App. Div. 541; añd., 167 N. Y. 620). Those questions must, therefore, be resolved on a trial of an alternative mandamus order. It is only upon the acceptance of relator’s contentions in regard to the facts that chapter 460, Laws of 1928, can. be invoked for relator’s benefit on the theory that that statute is sui generis and makes inapplicable to the situation herein the sections of the Civil Service Law which the defendant Commission invokes. Present — Lazansky, P. J., Young, Carswell, Seudder and Tompkins, JJ.