Opinion
Argued October 7, 1948
Decided November 24, 1948
Appeal from the Supreme Court, Appellate Division, Fourth Department, HALPERN, J.
Leonard N. Lakser for appellants.
Nathaniel L. Goldstein, Attorney-General ( Emil L. Cohen and Wendell P. Brown of counsel), for respondents.
Order affirmed, without costs; no opinion.
Concur: LOUGHRAN, Ch. J., LEWIS, DYE and FULD, JJ. CONWAY and DESMOND, JJ., dissent in the following memorandum: We vote to reverse and grant the relief prayed for, on the following grounds: While subdivision 7 of section 11 authorizing the cancellation by the State Civil Service Commission of appointments made from municipal civil service eligible lists makes no express provision for notice to such appointees, it would indeed be strange if the Legislature intended that persons already appointed from eligible lists, particularly war veterans like these petitioners, could be removed without notice from their civil service jobs. We are of the opinion that the Legislature did not so intend and that the applicable requirement for notice to the appointees in such a situation is found in subdivision 1 of section 22 of the Civil Service Law, which says, in part, that no person holding a civil service position, who is an honorably discharged war veteran "shall be removed from such position except for incompetency or misconduct shown after a hearing upon due notice upon stated charges * * *". The applicability of that section is not limited to cases of misconduct subsequent to appointment (see Matter of Lazenby v. Municipal Civil Service Comm., 116 App. Div. 135, affd. 188 N.Y. 588; Matter of Wolff v. Hodson, 285 N.Y. 197).