Phelan v. Leonard ( 1940 )

Defendants have appealed from a final order of the Schenectady Special Term of the Supreme Court which directed petitioner’s reinstatement as a member of the fire department of the city of Saratoga Springs with pay from November 9, 1936, less certain deductions. The proceeding was instituted for a peremptory mandamus order for petitioner’s reinstatement. Answering affidavits were filed and an alternative order of mandamus was granted. After trial in the Supreme Court, Saratoga county, before the court and a jury, the jury rendered a verdict in petitioner’s favor. The question litigated was whether or not petitioner had resigned and whether or not such resignation was voluntary. The jury found that petitioner had not resigned. The court denied defendants’ motion to set aside the verdict. The court is of the opinion that the evidence was sufficient to warrant the verdict. Order affirmed, with fifty dollars costs and disbursements. Hill, P. J., Heffernan, Schenck and Foster, JJ., concur; Crapser, J., dissents and votes to reverse the order and to grant a new trial on the ground that the findings are against the weight of the evidence.