Summary
In Matter of Marcus v. Ingersoll (266 N.Y. 359, 361), this court, while considering the effect of a similar rule, held that where a person who had resigned from a position in the competitive class in the civil service is within one year thereafter appointed to a different position, and such appointment is in no wise "connected with the previous service" but is made from an eligible list promulgated after competitive examination, the new appointment "must be regarded as an original appointment, and forms the date from which the petitioner's place in the order of suspension must be determined."
Summary of this case from Matter of Doering v. HinrichsOpinion
Argued January 23, 1935
Decided February 26, 1935
Appeal from the Supreme Court, Appellate Division, Second Department.
Paul Windels, Corporation Counsel ( Edmund L. Palmieri, Paxton Blair and Thomas W.A. Crowe of counsel), for appellants.
Albert De Roode for respondent.
The petitioner in October, 1916, was appointed junior assistant in the office of the Public Service Commission of the First District, New York city. He served under the Public Service Commission and its successor official bodies until June 18, 1923. Then he resigned. On October 8th, 1923, he was appointed a topographical draftsman, Grade C, in the office of the Borough President of Brooklyn. That appointment was provisional. He was definitively appointed to that position on December 16th, 1924. Then he was suspended for lack of work. Such suspensions must be made "in the inverse order of original appointment in the service." (Civil Service Law, § 31; Cons. Laws, ch. 7.) The Municipal Civil Service Commission ruled that the date of the petitioner's original appointment was December 16th, 1924. The courts below have held that the date of the original appointment was October 25th, 1916.
Resignation of his position under the Transit Commission terminated the petitioner's service. True, the rules of the State Civil Service Commission and the rules of the Municipal Civil Service Commission both provide that in certain circumstances a person who has resigned may be reinstated within one year without examination. Reinstatement might then have the effect of wiping out the resignation and renewed service might be traced in unbroken line to original appointment. Here, however, the petitioner was not reinstated in his former position, nor was he transferred to another position of the same grade or in the same service. He was given a provisional office by the city officer pending a new examination. So far as appears, the new appointment, though made within a year after the resignation, was not connected with the previous service and must be regarded as an original appointment, and forms the date from which the petitioner's place in the order of suspension must be determined.
The orders should be reversed and the proceedings dismissed, with costs in this court and in the Appellate Division.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, CROUCH, LOUGHRAN and FINCH, JJ., concur.
Orders reversed, etc.