Opinion
April, 1936.
Present — Sears, P.J., Taylor, Edgcomb, Thompson and Crosby, JJ.
Order reversed on the law, without costs, and motion denied, without costs. Memorandum: The position of custodian of the City Court building was abolished by a resolution of the council on November 27, 1934, which resolution was approved by the mayor on December 10, 1934. Neither the city nor the council is a party to this proceeding, and for that reason the action of the council in abolishing the office formerly held by the petitioner is not open to attack. ( Matter of Ciresi v. Newcomb, 244 App. Div. 760; affd., 269 N.Y. 570.) Matter of Inderbitzen v. City of Buffalo ( 246 App. Div. 568) is distinguished from the case at bar in that the city was made a party in that action, and, therefore, the rule in the Ciresi case did not apply. We are not passing upon the right of the petitioner to recover his salary from June 24, 1934, when he was informed that the office of custodian of the City Court building was abolished, to the date when it was in fact abolished by resolution of the council, approved by the mayor. That question can be determined in an action at law brought by the petitioner against the city. This proceeding is primarily one for reinstatement, and not an action to collect a debt. All concur. (The order directed reinstatement of petitioner as custodian of Buffalo City Court building.)