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People ex rel. Murphy v. Neu

209 N.Y. 554 Court N.Y. Decision date 1913-10-21 English

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p. 554
The People of the State of New York ex rel. Charles F. Murphy, Respondent, v. Jacob Neu et al., Constituting the State Civil Service Commission, Appellants.

Headnote

People ex rel. Murphy v. Kraft, 155 App. Div. 856 , reversed.
(Argued June 17, 1913;
decided October 21, 1913.)
Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 12, 1913, which reversed an order of Special Term sustaining a demurrer to and quashing an alternative writ of mandamus and overruled such demurrer.
The following question was certified: “Does the alternative writ of mandamus in this proceeding, upon the face thereof, constitute facts sufficient to constitute a cause of action ? ”
Thomas Carmody, Attorney-General {Franklin Kennedy of counsel), for appellants.
Albert De Roode for respondent.

The object of the alternative writ of mandamus is to review the action of the civil service commission in removing the office of transfer tax appraiser from the competitive schedule or classification in the civil service, and placing the same in the exempt schedule. The allegations of the writ are that the respondents have made no inquiry to determine whether a competitive examination is practicable to ascertain the fitness of candidates for the office of transfer tax appraiser, and have failed to consider evidence set forth in the writ which bears upon that question; and also.that the action of the commission in making the reclassification complained of is arbitrary and in bad faith, and taken for the purpose of allowing the state comptroller to appoint persons of his own selection to the positions exempted. The writ contains no allegation showing what the duties of the office of transfer tax appraiser are, and no allegation that a competitive examination of candidates for the office is in fact practicable.

Taking all the allegations of the writ as true, it may well be that the classification made by the commission is entirely proper. (People ex rel. Schau v. McWilliams, 185 N. Y. 92 ; Kiff v. Youmans, 86 N. Y. 324 .)

The questions certified should be answered in the negative, the order of the Appellate Division reversed, and that of Special Term affirmed, without costs in any court to either party, and with leave to the relator to apply to the Supreme Court at Special Term for an amended writ) on such terms as that court may impose, within twenty days after the entry of judgment on the remittitur from this court.

Cullen, Oh. J., Werner, Willard Bartlett, Chase, Collin, Cuddeback and Hogan, JJ., concur.

Ordered accordingly.

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