Chiaverini v. Murray — 237 A.D. 856

Majority

p. 856

In the Matter of the Application of Joseph Chiaverini, Respondent, for a Peremptory Order of Mandamus against Edward J. Murray, as Commissioner of Public Works of the City of Yonkers, New York, Appellant.

Order granting peremptory mandamus order reversed on the law and the facts, without costs, and motion denied. The relator failed to show that he had been appointed in compliance with the requirements of the municipal civil service commission’s rules; on the contrary, it affirmatively appears by the answering affidavit that there had been no such compliance on his part. Hence, he never had been legally appointed (Matter of Meehan v. Flaherty, 119 App. Div. 128 ; People v. Ingham, 107 id. 41), and even though the petitioner had served in the position to which he seeks reinstatement, that fact did not cure an illegal appointment. (People ex rel. Lee v. Gleason, 32 App. Div. 357 .) Lazansky, P. J., Kapper, Carswell, Scudder and Davis, JJ., concur.

Cases cited

Meehan v. Flaherty 119 App. Div. 128 N.Y. App. Div. 1907-04-26 p. 856
People ex rel. Lee v. Gleason 32 App. Div. 357 N.Y. App. Div. 1898-07-23 p. 856