Merlino v. Conway — 273 A.D. 1047

Majority

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In the Matter of Arthur Merlino, Appellant, against J. Edward Conway et al., Constituting the Civil Service Commission of the State of New York, Respondents, and John Lehritter et al., Interveners, Defendants.

Petitioner has appealed from an order of the Albany Special Term of the Supreme Court dismissing his petition. The proceeding was instituted for an order directing the New York State Civil Service Commission to certify petitioner for appointment in accordance with his reallocated standing on the eligible list for appointment as Court Clerk, Grade G, Kings County, mine pro tunc, with the same force and effect as if petitioner had originally received corrected rating. The eligible list was established for the position on February 5, 1945. On October 1, 1945, Pincus Weinshenker, one of the interveners who was at the head of the list, was appointed to fill an existing vacancy. In Hovember, 1945, petitioner instituted a proceeding under article 78 of the Civil Practice Act for the correction of his service rating. This proceeding was concluded by an order of the Albany Special Term on March 22, 1946, based upon the stipulation of the petitioner and the respondents, which granted the petitioner the relief he sought. Subsequently petitioner moved to resettle that order and his motion was denied and no appeal was taken. The present proceeding was then instituted. This proceeding is barred by section 1286 of the Civil Practice Act. In addition to that, the respondent hae no authority to

p. 1048

grant the petitioner the relief which he seeks. Order unanimously affirmed, without costs. Present — Hill, P. J., Heffernan, Brewster, Foster and Russell, JJ.