Opinion
November 16, 1949.
Present — Foster, P.J., Brewster, Deyo, Santry and Bergan, JJ.
Appeal by petitioner, and cross appeal by respondents, from an order of an Official Referee, which directed the reinstatement of petitioner to the position of prison guard for the balance of a probationary period from June 11th to August 22, 1947. Respondents contended that petitioner voluntarily abandoned his employment on June 11, 1947. The Referee found that such was not the fact, and that petitioner had been illegally and summarily dismissed during his probationary period, and accordingly directed his reinstatement from that date to the expiration date of his probationary period, which was August 22, 1947. The conclusion that petitioner was illegally dismissed on June 11th was correct since no charge had been filed against him (Civil Service Law, § 22; People ex rel. Kastor v. Kearny, 164 N.Y. 64). Subsequently and at the end of the probationary period petitioner was formally and summarily discharged. Such discharge was within the discretionary power of the appointing authorities if they acted in good faith. The Referee found that they acted in good faith. The evidence sustains their conclusion that petitioner's conduct was not such as to entitle him to a permanent appointment. Order unanimously affirmed, without costs.