Opinion
Submitted June 14, 1940
Decided July 24, 1940
Appeal from the Supreme Court, Appellate Division, Second Department.
Clarence Alexander for petitioner, appellant and respondent.
Leonard G. McAneny, Corporation Counsel ( J. Raymond Hannon and William F. Cauley, Jr., of counsel), for defendant, respondent and appellant.
A position is not effectively abolished where a person not appointed in accordance with the provisions of the Civil Service Law (Cons. Laws, ch. 7) is employed to perform the duties formerly performed by the holder of the position. The holder of such a position who has been suspended because no appropriation has been made for the payment of the salary attached to the position, is entitled to reinstatement in the same or similar position, at least from the date where, it appears, his salary can be paid, without requiring an appropriation of additional moneys. Proof of the existence since October 1, 1936, of a vacancy in a position of the same salary grade establishes that no new moneys need be appropriated in order to pay the salary attached to the position which the petitioner formerly held. The order of the Appellate Division directing that the petitioner should be reinstated as of that date in the position he formerly occupied or in a similar position, and should receive from that date compensation which he has lost, is correct, even though the petitioner could not be appointed to the vacant position.
The order should be affirmed, without costs.
LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, SEARS, LEWIS and CONWAY, JJ., concur.
Order affirmed.