Opinion
June 28, 1949.
Appeal from Supreme Court, Albany County.
Present — Heffernan, Brewster, Deyo, Santry and Bergan, JJ.
Appellant was given a temporary appointment as referee under the provisions of subdivision 3 of section 15 Civ. Serv. of the Civil Service Law, which provides that a temporary appointment may be made for a period not exceeding six months when it appears to the commission, upon due inquiry, that the position will not continue in existence for a longer period. The statute also provides that the appointment shall be made from the three highest on the eligible list who are willing to accept such temporary appointment. In 1946 there was an accumulation of unemployment insurance cases awaiting hearings. This was due to an increase in unemployment caused by postwar adjustments. The commission was cognizant of these facts. The Industrial Commissioner requested the commission for a list of eligible persons for temporary appointment as referee. On the list appellant was No. 9. On a canvass the persons outranking appellant declined the appointment. Appellant offered in writing to accept such temporary appointment. The letter of appointment to the appellant, dated January 7, 1947, contained the statement "this appointment is purely on a temporary basis and can not develop into a permanent appointment." Appellant claims that there were and are vacancies in the position of permanent referee; that the commission did not make due inquiry as required by statute to determine that the temporary position would not continue for more than six months, and consequently that the appointment given to him was permanent ab initio. As the commission was cognizant of the conditions existing it was in a position to form a judgment as to the time the temporary position would exist and was not required to conduct a special hearing to ascertain facts already in its possession. There is nothing to indicate that the due inquiry provision of the statute was not complied with. Even if there was a failure of compliance, this might affect the validity of the temporary appointment but it would not transform an illegal temporary appointment into a valid permanent appointment. ( Matter of Milsenrad v. Miller, 284 N.Y. 445.) Order unanimously affirmed, without costs.