People ex rel. Ray v. McAneny — 153 A.D. 884

Majority

p. 884

The People of the State of New York ex rel. Samuel Ray, Relator, v. George McAneny, as President of the Borough of Manhattan, City of New York, Respondent.

Headnote

Civil service — reinstatement.

Appeal from an order of the Supreme Court, made at Special Term and entered on the 35th day of July, 1913, denying the petition of the relator for the issuance of a writ of mandamus directing the respondent to reinstate the relator to the position of foreman painter in the bureau of buildings in the borough of Manhattan, city of New York.

The order appealed from should be affirmed upon the ground that the relator has not shown that there is" any vacancy existing to which he could be appointed and that the respondent is not required to create a vacancy by the removal of some other person for his benefit. (Matter of Breckinridge, 160 N. Y. 103 ; People ex rel. Chappel v. Linden thal, 173 id. 524; Matter of Gilfillan, 127 App. Div. 846 ; affd. on opinion below, 193 N. Y. 655 ; People ex rel. Forests v. Williams, 140 App. Div. 723 ; Matter of Barton v. Brannan, 141 id. 295.) The position that he occupied has been abolished. No one has been appointed in his place, and the command of the statute (Civil Service Law [Consol. Laws, chap. 7; Laws of 1909, chap. 15], § 22, as amd. by Laws of 1910, chap. 264) that “It shall be the duty of the head of the department or office in which such persons had been employed, to furnish the names of the person or persons affected to the State Civil Service Commission, with a statement in the ease of each of the date of his original appointment in the service,” has been complied with. The order appealed from should be affirmed, with ten dollars costs and disbursements. Present — Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ. Order affirmed, with ten dollars costs and disbursements.

Cases cited

Breckenridge v. Scannell 160 N. Y. 103 N.Y. 1899-10-03 p. 884