Waters v. Buck , 38 N.Y.S.2d 377 ( 1942 )

TJntermyer, J. (dissenting).

The appointments of the eight individuals against whom the petitioners seek to establish priority of service were not void but voidable under the decision in Matter of Cornehl v. Kern (260 App. Div. 35, affd., 285 N. Y. 777). They were made by the heads of departments authorized to make appointments from lists duly certified. They may not, in effect, be rescinded by this collateral method in the absence of -the parties most concerned and service rendered under such appointments treated as a nullity, especially where, as here, only their seniority and not their tenure in the Board of Education is attacked.

I, accordingly, dissent and vote to affirm the order.

Townlet and Glennon, JJ., concur with Martin, P. J.; Untermyer, J., dissents in opinion; Dore, J., concurs with Untermyer, J.

Order, so far as appealed from, reversed "with twenty dollars costs and disbursements, and the Board of Education is directed to reinstate the petitioners as of the date of their suspension.

Settle order on notice.