From Casetext: Smarter Legal Research

Matter of Cook v. Kern

Court of Appeals of the State of New York
May 24, 1938
15 N.E.2d 575 (N.Y. 1938)

Summary

In Cook certain Department of Sanitation employees had been performing the duties of "stationary engineer in charge", although no such formal position had been created by law.

Summary of this case from Donegan v. Nadell

Opinion

Argued April 15, 1938

Decided May 24, 1938

Appeal from the Supreme Court, Appellate Division, First Department.

William C. Chanler, Corporation Counsel ( Leonard M. Wallstein, Jr., and Paxton Blair of counsel), for appellants. Abraham K. Weber and Eugene V. King for respondents.


The order under review directs the Municipal Civil Service Commissioners, the Commissioner of Sanitation and the Budget Director of the city of New York to certify and assign the petitioners to the positions of "Stationary Engineers in Charge" in the order of their civil service ratings and forthwith to remove from these positions those persons now occupying them who are not on the eligible list and also those occupants who are on the eligible list but whose ratings are subordinate to those of the petitioners.

For many years prior to May, 1936, there existed in the Department of Sanitation an office or departmental designation known as "Stationary Engineer in Charge," but the fact does not appear that any such formal position had ever been created by law. Prior to May 27, 1936, the Municipal Civil Service Commission created a new classification known as "Stationary Engineer in Charge," and on that date directed a competitive promotional examination to be held for the position of "Stationary Engineer in Charge." However, on August 5, 1936, the Commission adopted this resolution: "Resolved, That with respect to all Stationary Engineers in Charge whose payrolls have been heretofore approved by this Commission, that the Commission continue such approval of payrolls until application is made by the respective departments in which such persons are employed to change such title to Senior Stationary Engineer, the existence of any promotion list to the contrary notwithstanding; it being intended that such a promotion list is to be used and certified only for the purpose of filling future vacancies." Five months subsequent to the adoption of this resolution, and while it remained in effect, the examination for "Stationary Engineer in Charge" was held January 20, 1937. The eligible list, upon which these petitioners' names appear, was not promulgated until July 7, 1937. On the dates of the adoption of the resolution, of the examination and of the promulgation of the eligible list, no vacancies existed among the "Stationary Engineers in Charge" in the Department of Sanitation. All the present incumbents had obtained valid original appointments as stationary engineers, and when, prior to May, 1936, additional duties were imposed and increased emoluments conferred upon them under their departmental designation as "Stationary Engineers in Charge," there were no promotion examinations to be taken and no eligible lists from which appointments could be made. Having received original valid appointments, they have the right to remain in their positions, even though a new classification has been effected and new requirements exacted. ( Matter of Fornara v. Schroeder, 261 N.Y. 363, 368; Matter of Sandford v. Finegan, 276 N.Y. 70, 73.) No new position has been created, no vacancy has occurred, and the sole purpose of the promotion examination was for filling vacancies. (Civil Service Law [Cons. Laws, ch. 7], § 16.)

The orders should be reversed and the application denied, with costs in all courts. (See 278 N.Y. 694.)

CRANE, Ch. J., LEHMAN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur.

Orders reversed, etc.


Summaries of

Matter of Cook v. Kern

Court of Appeals of the State of New York
May 24, 1938
15 N.E.2d 575 (N.Y. 1938)

In Cook certain Department of Sanitation employees had been performing the duties of "stationary engineer in charge", although no such formal position had been created by law.

Summary of this case from Donegan v. Nadell
Case details for

Matter of Cook v. Kern

Case Details

Full title:In the Matter of WILLIAM J. COOK et al., Respondents, against PAUL J. KERN…

Court:Court of Appeals of the State of New York

Date published: May 24, 1938

Citations

15 N.E.2d 575 (N.Y. 1938)
15 N.E.2d 575

Citing Cases

Matter of Mandle v. Brown

If, in the process, an adjustment of salaries is required in order to make rational the reward for actual…

Matter of Corrigan v. Joseph

The line of promotion is from maintainer's helper to maintainer and thereafter to nonmechanical positions —…