Majority
p. 536In the Matter of the Application of Max Danziger, Appellant, for a Mandamus Order against John L. Rice, Commissioner of Health of the City of New York, James E. Finegan, President, and Others, Constituting the Municipal Civil Service Commission of the City of New York, Respondents. First Department, February 11, 1937.
Abraham J. Rosenblum, for the appellant.
Henry J. Shields of counsel [Paxton Blair with him on the brief; Paul Windels, Corporation Counsel], for the respondents.
While the defense attacked may not be stricken out for insufficiency, we are of opinion that the good faith of the defendant commissioner with respect to obtaining an appropriation is very much in issue. So, too, the petitioner will be entitled to offer proof as to whether provision for the payment of the salary had been made in the estimates, or otherwise.
The order, so far as appealed from, therefore, should be affirmed, but without costs.
p. 537
Present — Martin. P. J., McAvoy, O’Malley, Untermyer and, Cohn, JJ.
Order, so far as appealed from, unanimously affirmed, without costs.