Place v. Estabrook

252 A.D. 874, 299 N.Y.S. 992, 1937 N.Y. App. Div. LEXIS 6637

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1937
• Status: Published

Opinion

Order granting petitioner’s application for a peremptory order of mandamus directing his reinstatement as plumbing inspector of the village of Hempstead, and directing that the salary of the position be paid to him, reversed on the law and not in the exercise of discretion, and the motion denied, without costs. Petitioner was not entitled to the benefits of section 22 of the Civil Service Law. It is undisputed that the petitioner did not inform the appellants, prior to the time he was superseded in the position of plumbing inspector, that he was an exempt volunteer fireman. It is also undisputed that he interviewed each of the appellants before April 5, 1937, in connection with seeking “reappointment” for the following year, and on that occasion, knowing his removal was imminent if his prior employment was not for a fixed term, he made no assertion that he was entitled to the privileges of an exempt volunteer fireman. (People ex rel. Robesch v. President, etc., 190 N. Y. 497, 499; Matter of Sullivan v. Tunney, 248 App. Div. 779; Matter of Wallace v. McElligott, 249 id. 753; Matter of Byrne v. Kaplan, 238 id. 806.) This view, of course, assumes, although it does not affirmatively appear, that during the period of his membership in the volunteer fire company he in fact actually performed services as a fireman. Matter of Brown v. Stephan (245 App. Div. 588) is not to the contrary. There the village had actual knowledge of the exempt fireman’s status, it having, previous to his removal, furnished him with a certificate that he was entitled to the privileges of an exempt fireman. Hagarty, Carswell, Davis, Johnston and Adel, JJ., concur.