Motto v. Lang — 13 A.D.2d 951

Majority

p. 951

In the Matter of Gabriel R. Motto, Appellant, v. Theodore H. Lang et al., Constituting the Department of Personnel, Civil Service Commission, City of New York, et al., Respondents.

Order entered on January 17, 1961, dismissing the petition, reversed on the law, without costs, and matter remitted to Special Term for a hearing in accordance with this memorandum. The challenged appointments may only be sustained if it be demonstrated that the appointees were performing, prior to reclassification, the duties encompassed by their new title (Matter of Mandle v. Brown, 5 N Y 2d 51 , 65). This record is inadequate to enable us to determine whether the respondents could rationally conclude that the duties assigned to the appointees under the title of Principal Housing Inspector, were those performed by them prior to reclassification. Accordingly, a hearing is required. Concur — Botein, P. J., Breitel, Rabin and Eager, JJ.; Stevens, J., dissents and votes to affirm.

Cases cited

Mandle v. Brown 5 N Y 2d 51 N.Y. 1958-06-25 at 65 p. 951