Weinstock v. Hammond — 245 A.D. 614

Majority

p. 614

In the Matter of the Application of Isidore Weinstock, Appellant, against Thomas W. Hammond, as Sanitation Commissioner of the Sanitation Department of the City of New York, Respondent.

First Department,

December 13, 1935.

Arthur A. Fink, for the appellant.

Henry J. Shields of counsel [Charles E. Ramsgate with him on the brief; Paul Windels, Corporation Counsel, attorney], for the respondent.

The petitioner’s application for a rehearing of the charges against him was not made in accordance with- section 1543-b of the Greater New York Charter. Consequently, the certiorari order was properly vacated upon the ground that “ the time within which the petitioner can procure a rehearing ” had not elapsed (Civ. Prac. Act, § 1286, subd. 3) and will not elapse until the expiration of two years from the date of his removal, or until four months after proper application for a rehearing of the charges shall have been made and denied.

The order appealed from should, therefore, be modified by providing that it is without prejudice to the petitioner’s right to a new order of certiorari, if application in accordance with the provisions of subdivision 3 of section 1286 of the Civil Practice Act be made, and as so modified affirmed, without costs.

Present — Martin, P. J., Merrell, McAvoy, O’Malley and Untermyer, JJ.

Order modified by. providing that it is without prejudice to the petitioner’s right to a new order of certiorari, if application in accordance with the provisions of subdivision 3 of section 1286 of the Civil Practice Act be made, and as so modified affirmed, without costs.