Molinari v. Quayle

Petitioner’s husband, Francis J. Molinari, entered the United States Army in June, 1943. He was reported missing in action on January 12, 1945, and the War Department recorded the presumptive date of his death as January 13,1946. While Molinari was away on active military service he was, on June 19, 1944, appointed a fireman in the New York City Fire Department, by an order of the fire commissioner. That order stated that Molinari was assigned to the military service division of the department, * ‘ subject to a medical examination by the Fire Department Medical Board ”, the appointment to be without compensation until Molinari (and others similarly appointed at the same time by the same order) should be discharged from military services and actually begin to perform their duties as firemen. Molinari never came home from war service to take the fire department medical examination, or take an oath of office, or go to work as a fireman. His widow applied to respondents, trustees of the New York Fire Department Insurance Fund, for payment to her of the $2,000 death benefit provided for by section B19-8.0 of the New York City Administrative Code. That section says that there shall be deducted from the pay of each fireman, $1 per month which deductions shall make up a special fund (separate from the pension system and not contributed to by the city) out of 'which, on the death of a member or pensioned or retired member of the fire department, there shall be paid to his named beneficiary, or to his widow, $2,000. Subdivision f of section B19-8.0 provides that any member of the fund on leave of absence for military duty shall continue to

Molinari passed the required civil service examination for fireman in December, 1941, and was, on February 1, 1943, certified by the civil service commission to the fire commissioner as eligible for appointment as a probationary fireman. He was refused appointment at that time by the commissioner, however, because his status in selective service was such that the commissioner thought it unwise or improper to appoint him (and many others similarly situated). In November, 1943, this court, in Matter of Berger v. Walsh ( 291 N. Y. 220 ), held that the commissioner had exceeded his authority in treating the draft status of those civil service eligibles as a ground for refusing them appointments. That determination, of course, meant that Molinari should not have been turned down by the commissioner in February, 1943, on that ground. The commissioner thereafter did what he could to correct his error but found that Molinari, and some two hundred of the others who had been denied appointment in February, had meanwhile entered military service. The commissioner, as to those two hundred eligibles, then made use of subdivision 6 of section 246 of the Military Law, which permits the appointment or promotion, from eligible lists, of persons absent on military service. The commissioner therefore promulgated the formal order of June 19,1944, referred to in the first paragraph hereof, by which order Molinari and many others were “ appointed as Firemen ” with assignment to

Respondents concede that the Military Law makes no reference to a “ conditional appointment ” but argue that these appointments were, of necessity, conditioned upon the men passing medical examinations and filing oaths of office. True, there is a fire department rule (Rules and Regulations for the Uniformed Force, § 125) mandating an examination of applicants by a departmental medical board. But the department could waive its own rule, or modify it in special circumstances like these, and the commissioner’s June 19,1944, order, appointing as firemen, Molinari and others in like plight, subject to later physical examination, was such a modification • of the rule, worked out to undo the damage done by the commissioner’s own earlier mistake. Similarly, as to the oath of office, section 30 of the Civil Service Law and section 487a-5.0 of the Administrative Code require a fireman to take an oath of office, but the Civil Service Law requirement is that he take such oath “ before he shall be entitled to enter upon the discharge of any of his duties Reading those two statutes with subdivision 6 of section 246 of the Military Law, we have a statutory scheme that permits civil service appointments of eligibles away at war, the requisite oath of office to be taken on return from military service and before entering actively on the duties of the civilian positions. The fire commissioner’s order, as to Molinari and the others, thus could legally accomplish just what it said it did: that these men, away in war service, be appointed forthwith, the appointments to be without pay and without active duty until they should come back to New York, pass medical examinations, and begin work as firemen. It is no answer to this that the fire commissioner, under Matter of Berger v. Walsh ( 291 N. Y. 220 , supra), was not required to appoint any particular eligible. The fact is that by the June 19, 1944, order, the commissioner did formally and legally appoint Molinari and the others. They thus became members of the fire department and of the fund, and as such, became

While no decision in point is found, we consider that the result herein arrived at is in accord, generally, with Matter of Verdecanna v. Carey ( 285 N. Y. 130 ).

The orders should be reversed, with costs in all courts, and the relief prayed for in the petition granted.

Loughran, Ch. J., Conway, Dye, Fuld and Bromley, JJ., concur with Desmond, J.; Lewis, J., dissents and votes for affirmance.

Orders reversed, etc.