Tilles v. Department of Labor

257 A.D. 308, 13 N.Y.S.2d 431, 1939 N.Y. App. Div. LEXIS 7745

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1939
• Status: Published

Opinion

Per Curiam.

The Special Term correctly held that there is an issue of fact as to whether petitioners were duly appointed from the appropriate eligible lists or whether their appointments gave them only a de facto status until the appointment of others who were inadvertently passed over. The statute requires that appointments shall be made from among those graded highest in open competitive examinations (Civ. Serv. Law, § 14) and that appointments shall be made to all positions by selection of one of the three persons who are willing to accept and are graded highest on the most nearly appropriate eligible list. (Rules for Classified Civil Service, rule VIII, subds. 1, 2 and 3.) The fact that petitioners were appointed earlier than the intervenors who had higher places on the eligible list is not conclusive that petitioners were appointed illegally, as the names of intervenors may have been passed over for good cause. Thus, an intervenor may have been unwilling to accept an appointment immediately or he may be deemed to have declined appointment for failure to accept within the time prescribed an offer of appointment (Rules for Classified Civil Service, rule VIII, subd. 2), or the appointment of intervenor may have been deferred by the appointing officer who may select only one out of three names certified to him. (Rules for Classified Civil Service, rule VIII, subds. 1, 2 and 3; People ex rel. Balcom v. Mosher, 163 N. Y. 32.)

The circumstances surrounding the appointment of each petitioner and each intervenor must be determined upon evidence, and the legal date of the appointment of each is to be resolved after a trial. After the legal dates of the appointment of intervenors and petitioners have been determined, then the Department of Labor and the State Civil Service Commission are to correct their records so as to indicate the respective dates upon which each should legally have been appointed. Such dates, when fixed, will determine the seniority rights of all. Suspensions are then to be made pursuant to law in the inverse order of the original appointment to the service as thus corrected. (Civ. Serv. Law, § 31; Koso v. Greene, 260 N. Y. 491.) After a trial of the issue of fact as herein indicated the court shall render a final order granting the appropriate relief. (Civ. Prac. Act, § 1300.)

The orders appealed from should, accordingly, be affirmed, without costs.

Present — Martin, P. J., Towniey, Untermyer, Cohn and Callahan, JJ.

Orders unanimously affirmed, without costs.