Opinion
September 14, 1955.
This is an appeal from an order of the Albany County Trial Term, in a proceeding under article 78 of the Civil Practice Act, directing the defendants to appoint the petitioners to newly created positions in the Division of Employment in the Department of Labor. Petitioners had been employed as Property Managers in the Albany and New York offices of the Division of Employment. Their duties consisted chiefly of surveying available premises for the use of the division, negotiating leases and checking the condition of leased premises and physical equipment from time to time. Their positions were classified in grade 22, with a salary range of $4,638 to $5,628, plus emergency compensation. The defendant Loysen decided to create two new positions, one, as assistant to the administrative officer who was in charge of the business operations of the Albany office and the other, as the supervisor of the business operations of the New York City office. The position of Assistant Administrative Officer was classified in grade 28, with a salary range of $5,860 to $7,120, and the position of Senior Unemployment Insurance Manager in charge of the New York City office was placed in grade 23, with a salary range of $4,836 to $5,826, plus emergency compensation in each case. It was originally contemplated that these would be additional positions and that the Property Managers would serve under the direction and supervision of the new supervisory officers. However, after the new positions had been authorized by the State Civil Service Commission and approved by the Director of the Budget, the defendant Loysen decided that the incumbents of the new positions could perform the duties of the Property Managers themselves, instead of supervising their performance by the petitioners. Shortly after the creation of the new positions, the petitioners' positions as Property Managers were abolished and their services discontinued. The new position of Assistant Administrative Officer was filled by promotional examination, which was limited to persons who were already in grade 26 or higher, thus automatically excluding the petitioners. The New York City position was filled by the transfer of a Senior Unemployment Insurance Manager appointed from a pre-existing list. The petitioners were honorably discharged veterans. They contended in this proceeding that their positions had not been abolished in good faith and that the duties of the new positions were substantially the same as those of their former positions and that therefore they were entitled, in the alternative, either to appointment to the new positions or to the re-establishment of their former positions. A jury trial of the issues of fact was held pursuant to an order of the Special Term. At the conclusion of the trial, two written questions were submitted to the jury, substantially identical in form with respect to each of the petitioners: "Were the duties which the petitioner Fellows was performing while employed in the position of property manager substantially the same or similar to the duties prescribed for the position of Assistant Administrative Officer, and was the petitioner Fellows entitled to be appointed to this position of Assistant Administrative Officer?" "Were the duties which the petitioner Tobin was performing while employed in the position of property manager substantially the same or similar to the duties prescribed for the position of Senior Unemployment Insurance Manager and was the petitioner Tobin entitled to be appointed to this position of Senior Unemployment Insurance Manager?" The jury reported a verdict in favor of the petitioner in response to each of the questions. The questions put to the jury allowed the jury to consider, in determining the duties of the petitioners' former positions, all the work actually performed by them, even though some of the work may have been outside the duties appropriate to the titles of their positions and the duties specified in the position specifications. This was contrary to Matter of Meenagh v. Dewey ( 286 N.Y. 292) but no objection was made on this ground to the questions submitted and no exception was taken to the court's charge in this respect. Neither had any proper objections been made, during the course of the trial, to the proof by the petitioners of the performance of duties which went beyond the position specifications. In this state of the record, we cannot say that the jury's verdict finding that the duties of the old and the new positions were substantially the same was contrary to the weight of the evidence. Furthermore, even if the comparison between the old and the new positions had been limited to the duties prescribed in the position specifications, the jury would have been justified in finding that the additional supervisory duties prescribed for the new positions did not constitute substantial or material additions to the duties of the old positions. After it had been decided to have the incumbents of the new positions do the work of the Property Managers directly instead of supervising it, the supervisory duties which were left were of a minor character. In response to the questions put to the jury by the trial court, the jury found that the petitioners were entitled to be appointed to the new positions and an order was entered accordingly. The appellants make the point that this has the effect of promoting the petitioners to the new positions in a higher grade. It may well be that the relief granted to the petitioners should have been limited to a direction that the abolished positions be re-established and that the petitioners be reinstated therein with back pay, but this point was not raised in the court below and indeed there is no specific request upon this appeal for such a modification of the order. Order appealed from affirmed, with $50 costs. Foster, P.J., Bergan, Halpern and Zeller, JJ., concur.