Opinion
December 23, 1938.
Appeal from Supreme Court, New York County.
Present — Martin, P.J., Townley, Dore, Cohn and Callahan, JJ.; Callahan, J., dissents; dissenting opinion by Callahan, J.
Appeal by the petitioner in the second above-entitled proceeding from an order of the Supreme Court, entered in the New York county clerk's office on June 21, 1938, denying his motion for certification by the municipal civil service commission to the fire commissioner and to the fire department of the city of New York for appointment to the position of fireman.
Orders affirmed, with twenty dollars costs and disbursements. No opinion.
I dissent on the ground that the petitioners are protected by the saving clause of the New York City Administrative Code (§ 963-1.0), which provides that no existing right or remedy of any kind shall be lost or impaired by reason of any provisions of the Code. Therefore, the residence law, which became effective as a part of the Administrative Code,fn_ could not affect the right to appointment of persons on existing competitive civil service lists. Though not possessing a vested right to appointment, these persons had some existing right, and it is plain that the legislative intent was that it should not be interfered with.
See Lyons Residence Law, being N.Y. City Local Laws of 1937, No. 40; N.Y. City Administrative Code, § B40-4.0. — [REP.
The decision in People ex rel. Rossner v. Scannell ( 49 App. Div. 244) is not to the contrary. An examination of the record on appeal in that case shows that no saving clause was called to the court's attention, and the opinion of the court expressly states that it was based on the absence of any clause limiting the provisions of the statute under consideration, so that it would not apply to the relator Rossner.