Petty v. Kracke — 154 N.Y.S. 294

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p. 294

PETTY v. KRACKE.

(Supreme Court, Special Term, Kings County.

January 27, 1915.)

Headnote

Officers @^>68—Suspension—Civil Service Rules—Preference.

A Spanish War veteran entitled to a preference in appointment to the civil service, discharged for lack of funds, when in the commissioner’s judgment a reduction of the force was necessary, was not entitled to any preference in retention; and where he was not discharged, but merely suspended, and his name placed upon the preferred eligible list for assignment to duty as soon as funds justified the employment of more help of his class, it was all that he could expect under the law.

[Ed. Note.—For other cases, see Officers, Cent. Dig. § 97; Dec. Dig. <§.—~>68J

igzs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Mandamus by one Petty against one Kracke, as Commissioner of the Department of Bridges. Motion for mandamus denied.

Henry F. Cochrane, of Brooklyn, for plaintiff.

Elliot S. Benedict, Corp. Counsel, of New York City, for defendant.

The petitioner is a painter employed in the department of bridges, who was suspended by the commissioner owing to the lack of funds wherewith to pay him. He is an honorably discharged veteran of the Spanish-American War, and claims that his dismissal was illegal, because, as such, he is entitled to a preference in retention over painters who- are not veterans.

His contention is not sound. Where the discharge is for lack of funds, and in the judgment of the commissioner a reduction of the force'is necessary, because he has no money to- pay the men, a veteran is not entitled to' any preference. It further appears that the petitioner has not in fact been discharged, but merely suspended from duty owing to the lack of funds, and his name has been placed upon the pre

p. 295

ferred eligible list in accordance with the provisions of the charter, that he may again be assigned to duty as soon as there is money enough to justify the employment of more help of his class. This is all he can expect under the law.

Motion for mandamus denied, without costs.