Restaino v. City of New York

Full title: FELICE RESTAINO, Respondent, v. CITY OF NEW YORK, Appellant

Court: Supreme Court, Appellate Term, Second Department

Date published: Dec 20, 1945

185 Misc. 1027 (N.Y. App. Term 1945)

60 N.Y.S.2d 617

Opinion

December 20, 1945.

Appeal from the City Court of the City of New York, Kings County, SABBATINO, J.

Ignatius M. Wilkinson, Corporation Counsel ( Joseph F. Mulqueen, Jr., and Pauline K. Berger of counsel), for appellant.

Samuel J. Sussman and Lucius Lindauer for respondent.

MEMORANDUM

Per Curiam.

The Municipal Civil Service Commission is not the agent of the City of New York when it conducts examinations or investigates candidates. ( Slavin v. McGuire, 205 N.Y. 84, 87.) Moreover, in the exercise of reasonable care, the commission and the city could act on the presumption that the applicant was sane. ( Jones v. Jones, 137 N.Y. 610.) Nothing at the time of the application or at the time of examination justified a finding that there was any reason for the commission or the city not to act on that presumption. Reasonable conduct did not require more than was done here. (Cf. Castorina v. Rosen, 290 N.Y. 445.) No prior experience of the commission or city which should have dictated further inquiry appears in this record.

The judgment should be unanimously reversed on the law, with costs to defendant, and complaint dismissed.

MacCRATE, SMITH and STEINBRINK, JJ., concur.

Judgment reversed, etc.