Matter of Berger v. Walsh

Lewis, J. The names of the petitioners, forty-eight in number, were certified by the Municipal Civil Service Commission as eligible for appointment as firemen in the city of New York. In making appointments from that list the Commissioner of the Fire Department, acting as he believed in the interest of administrative efficiency, passed over the names of the petitioners upon the ground that, although no one of them was then classified as 1-A under the Selective Training and Service Act of 1940 (U. S: Code, tit. 50, Appendix, § 301 et seq.), the existing war emergency had created circumstances which made imminent their reclassification and induction into .the nation’s arméd forces, thus making uncertain their availability for continued future service in the Fire Department. In this proceeding hy the petitioners to compel their appointment as firemen, we are in agreement with the order of the Appellate Division insofar as it gives effect to the ruling by that court that by failing to recognize and act upon the eligibility of the petitioners for appointment as firemen the Commissioner exceeded the discretionary power granted to him by section 246, subdivision 7-a, of the Military Law. (L. 1942, ch. 795.) We do not agree, however, with that portion of the order of the Appellate Division which directs “ * * * that the defend- , ant, Patrick Walsh, as Commissioner of the Fire Department of the City of New York, forthwith appoint each of the petitioners, not already appointed, to the position of Fireman, in *223 the Fire Department of the City of New York, effective as of the 16th day of September, 1942, and that the seniority and other rights of each of the petitioners shall be deemed operative from that date.” Such a direction, we think, would in effect deprive the Commissioner of the power of selection which is implicit in the authority granted to him as an appointing officer. (Municipal Civil Service Buies of the City of New York, rule V, §§ 7, 8; People ex rel. Balcom v. Mosher, 163 N. Y. 32, 40; People ex rel. Kastor v. Kearny, 164 N. Y. 64, 69; People ex rel. Plancon v. Prendergast, 219 N. Y. 252, 259.) In making appointments of firemen from the eligible list certified by the Municipal Civil Service Commission, upon which appeared the names of the petitioners, the discretion granted to the Commissioner by section 246, subdivision 7-a, of the Military Law (L. 1942, ch. 795) authorized him to treat as unavailable for appointment only those who were then classified as 1-A under the Selective Training and Service Act and those who were then in the Beserve Military or Naval Forces of the United States. The order of the Appellate Division should be modified by striking out the second decretal paragraph thereof, without costs, and by remitting the proceeding to the Special Term for further proceedings not inconsistent with this opinion. Lehman, Ch. J., Loughran, Bippey, Conway, Desmond and Thacher, JJ., concur. Ordered accordingly.