Austin v. Howard — 33 N.Y.2d 733

Majority

p. 733

In the Matter of Robert G. Austin, Jr., Appellant, v. Robert B. Howard, Jr., as Fire Commissioner of the City of Buffalo, Respondent.

Argued October 9, 1973;

decided October 23, 1973.

p. 734

Lauren D. Rachlin and Michael B. Berger for appellant.

Anthony Manguso, Corporation Counsel (Anthony Gregory of counsel), for respondent.

Order reversed, without costs, and the matter remitted to Special Term for further proceedings in accordance with the following memorandum: As stated by the dissenters at the Appellate Division, the findings and recommendations of the “ arbitrator ” were entitled to consideration by the Commissioner even if not entitled to the weight assigned by the law to an arbitrator’s award, and should not have been ignored by the Commissioner as he apparently did when he made Ms determination (see Matter of Kelly v. Murphy, 20 N Y 2d 205 ). Accordingly, the matter should be remitted to Special Term with directions to remand the matter to the Commissioner for reconsideration

p. 735

in the course of which appropriate weight shall be given the findings and recommendations of the arbitrator.

Concur: Chief Judge Fuld and Judges Burke, Breitel, Jasen, Jones and Wachtler. Taking no part: Judge Gabrielli.

Cases cited

Kelly v. Murphy 20 N Y 2d 205 N.Y. 1967-07-07 p. 734