Opinion
June 28, 1949.
Appeal from Supreme Court, Broome County.
Present — Foster, P.J., Heffernan, Deyo, Santry and Bergan, JJ.
The order directed a trial of the issues. Petitioner alleges the applicable text of the municipal civil service rules requires the appointing officer, in the case of probationary appointment, to file with the municipal civil service commission, not less than two weeks before the probationary term expires, a report of the services of the probationer and the opinion of the appointing officer on his fitness, and alleges that his probationary services were terminated without such a report being filed, although it is conceded notice was given to petitioner himself that his service was not satisfactory. Respondents in their answer deny that the applicable text of the rule required a report to the commission. Petitioner produces a certified copy of the rules as filed with the Secretary of State. Respondents, by the affidavit of the secretary of the municipal civil service commission, show a certificate that the applicable rule differs from the text on file with the Secretary of State. No law or rule makes one conclusive against the other. The Special Term was not required to accept one and reject the other on the face of the certificates presented, but was justified in deciding that the conflict could best be resolved by a trial. The order denying the ultimate relief sought in the petition on motion is supported additionally by the procedural avenue followed by petitioner. Besides alleging his rights under the rule, he alleges, among other things, that he was qualified and satisfactorily performed the duties of the position; that no charges were filed or hearing held; and that the termination of his services was arbitrary and capricious. Since these issues are tendered by him and factually denied, and the denial of allegations of performance of duties and qualifications supported by proof, the court could not grant an order for ultimate relief but would be required to order a trial so long as petitioner continued to rely on the additional issues he himself tendered. Even though petitioner is a veteran, no charges or hearing are necessary if at the end of a probationary term his services are found unsatisfactory. Order denying relief sought in the petition and directing a trial of the issues unanimously affirmed, without costs.