Folkes v. Hushion

Final order of mandamus directing reinstatement of the respondent to a position in the department of finance, city of Yonkers, modified by striking from the several parts of the decretal paragraph the words “ January 1, 1934,” and substituting therefor in each instance the words “ October 1, 1936.” As thus modified, the order is affirmed as a matter of law and not in the exercise of discretion, with costs to the respondent. Findings and conclusions inconsistent herewith are reversed and new findings and conclusions will be made. The court finds that neither the respondent’s position nor his duties were abolished in fact or in good faith, and that, eoneededly, a vacancy has existed in a grade 8 position since September 30,1936. The court concludes that respondent is entitled to be reinstated, with back salary from October 1, 1936, less outside earnings from the same date. (Matter of Mullane v. McKenzie, 269 N. Y. 369; Matter of Garrett v. McDermott, 280 id. 820.) Present —1 Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ. Settle order on notice.