Citation Numbers: 198 Misc. 585
Judges: Malpass
Filed Date: 4/12/1950
Status: Precedential
Modified Date: 1/12/2023
The petitioner, Albert E. Loefler, has brought this proceeding under article 78 of the Civil Practice Act in which he seeks an order directing the respondents, president and members of the village board of trustees of the village of Ilion, to reinstate the petitioner to a position which he held in the village service, which position was abolished by the village trustees. The petitioner claims to be an exempt volunteer fireman within the meaning of the General Municipal Law (art. 10) and asserts that the abolition of the position on the alleged ground of economy was not made in good faith and that it was tantamount to removing him from his position without a hearing in violation of the provisions of section 22 of the Civil Service Law.
The respondents have interposed an answer denying generally the allegations of the petition and asserting that this proceeding is barred by the four months’ Statute of Limitations applicable to such a proceeding as provided in section 1286 of the Civil Practice Act and also assert that the original appointment of the petitioner was illegal and, therefore, the petitioner acquired no rights under the Civil Service Law.
The original appointment of the petitioner, in my opinion, was legal. The village board of trustees no doubt had authority to create such a position and the appointment of the petitioner to the position was subject to the approval of the Herkimer County Civil Service Commission. The commission acted within its authority in determining the position to be in the noncompetitive class and in designating it as motor equipment operator regardless of the title given the position by the village board of trustees. The commission duly approved the appointment of the petitioner to the position and for a period of years approved village payrolls containing the name of the petitioner.
The respondent’s claim that the petitioner is guilty of loches and that this proceeding is barred by reason of the four months’ Statute of Limitations contained in section 1286 of the Civil Practice Act cannot, in my opinion, prevail. If the petitioner were illegally deprived of his rights by reason of the action of the village board of trustees in abolishing the position held by him, he could bring this proceeding to review the board’s action at any time within four months after the refusal of the village board to reinstate him or to transfer him to some other position. There is no evidence of any such refusal. (Matter of Williams v. Morton, 297 N. Y. 328; Matter of O’Connell v. Kern, 287 N. Y. 297.)
The decision of this case rests primarily upon the question of whether or not the village board of trustees acted in good faith when they .adopted the resolution of March 15,1949. Subdivision 1 of section 22 of the Civil Service Law provides that ‘ ‘ If the position so held by any such honorably discharged soldier, sailor, marine, or member of the army nurse corps, or navy nurse corps (female) or exempt volunteer fireman shall become unnecessary or be abolished for reasons of economy or otherwise, the said honorably discharged soldier * * * or exempt volunteer fireman holding the same shall not be discharged from the public service but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill, receiving the same compensation therefor, and it is hereby made the duty of all persons clothed with power of appointment to make such transfer effective.” (Italics supplied.) There is no evidence which would justify a conclusion by this court that the village board of trustees did not act in good faith or that the resolution passed by them 'abolishing the
The petitioner, as an exempt fireman, had certain rights even though the position which he held in the village service was abolished. Section 22 of the Civil Service Law provides that an exempt volunteer fireman holding a position which has been abolished “ shall not be discharged from the public service but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill, receiving the same compensation therefor, and it is hereby made the duty of all persons clothed with power of appointment to make such transfer effective.” In Matter of Clancy v. Halleran (263 N. Y. 258) the court at page 262, said: “Interpreting or enforcing the language of the above section, this court has held that, although the Civil Service Law (§ 22) requires a veteran employee to be transferred for duty in such position as he may be fitted to fill, there must be another position vacant to entitle him to a transfer. A public official is not obliged to discharge other employees in order to open a position for a veteran. * * * The burden of proving that another position exists, to which he can be transferred, and that he is able to fill it, rests upon the veteran.” The petitioner has failed to offer proof as to any vacancy existing in the village service at the time of the abolition of his posi-
The petitioner has failed to establish his right to the relief sought herein and an order dismissing the petition may be entered, with $10 costs.