Bacon v. Huie — 261 A.D. 692

Majority

p. 692

In the Matter of the Application of Henry Grantham Bacon, Respondent, Appellant, for an Order Pursuant to Article 78 of the Civil Practice Act against Irving Y. A. Huie, as Acting Commissioner of the Department of Public Works, and Others, Appellants, Respondents.^[1]

First Department,

May 2, 1941.

Emanuel Goodman of counsel [Goodman & Werner and S. M. Sprafkin with him on the brief; Morris Pinsky, attorney], for the respondent-appellant.

Nicholas Bucci of counsel [Arthur II. Kahn with him on the brief; William C. Chanler, Corporation Counsel, attorney], for the appellants-respondents.

The petitioner, whose name was on a preferred list for the position of mechanical engineer, grade 4, pursuant to section 31 of the Civil Service Law, by failing to deny, admits in his reply that he had declined appointment to the position which he occupied at the time he was separated from the service. He now asserts the right to appointment to the position of mechamcal engineer (heating and ventilating), grade 4, at a higher salary, for which position the preferred list on which his name appears was declared to be appropriate. Section 31 provides, however, that “ failure to accept, after reasonable notice, an office or position to which he has been certified shall be held to be a relinquishment of his right to reinstatement as herein provided.” The petitioner’s

p. 693

refusal to accept appointment to the position which he occupied at the time of separation from the service precludes appointment from the preferred list on which his name appears.

The order, in so far as appealed from by the defendants, should be reversed and the petition dismissed, with twenty dollars costs and disbursements to the defendants. In so far as appealed from by the petitioner, the order should be affirmed.

Present —■ O’Malley, Townley, Glennon, Untermyer and Cohn, JJ.

Order, so far as appealed from by the defendants, unanimously reversed, with twenty dollars costs and disbursements to the defendants, and the petition dismissed. Order, so far as appealed from by the petitioner, unanimously affirmed.