Mazzarella v. Kern — 260 A.D. 1012

Majority

p. 1012

In the Matter of the Application of Raffaele Mazzarella, on Behalf of Himself and All Others Similarly Situated, Petitioner, Appellant, for an Order under Article 78 of the Civil Practice Act, against Paul J. Kern, President, and Wallace S. Sayre and Ferdinand Q. Morton, Commissioners Constituting the Municipal Civil Service Commission of the City of New York, and John H. Delaney, as Chairman, and Frank X. Sullivan and George Keegan, Commissioners Constituting the Board of Transportation of the City of New York, Respondents.

(dissenting). The Wicks Law (Laws of 1939, chap. 927, § 2) requires an affirmative act by an alien employee, within six months after the act takes effect, evidencing his intention in good faith to become a citizen. The apparent purpose of the Legislature was to confer upon aliens in the employ of privately operated subway lines a privilege to continue in employment if the transit facilities are acquired by a public agency, upon qualifying themselves for citizenship. In filing his application expressing a desire to declare his intention to become a citizen in accordance with the Naturalization Law, appellant, in my opinion, complied with the statute. The expression “ shall have filed declarations of intention to become citizens ” was obviously not intended by the State lawmakers to be interpreted in the technical sense in which Congress would use such language in a naturalization statute.

The order should be reversed and the application should be granted to the extent of restraining respondents from dismissing the appellant.

Statutes and regulations cited

Civil Service Law p. 1012