Mercer v. Dowd

Order reversed on the law and facts and proceeding dismissed, without costs of this appeal to any party. Memorandum: This is an appeal in a proceeding under article 78 of the Civil Practice Act from an order restoring petitioner to the position of executive secretary to the Commissioners of Allegany State Park. The petitioner, an honorably-discharged World War veteran, had been removed without a hearing as provided for in section 22 of the Civil Service Law. The State Civil Service Commission classified the position in question as being exempt under subdivision 2 of section 13 of the Civil Service Law. Its resolution, adopted June 24,1924, and approved by the Governor August 6, 1924, reads as follows: “ Resolved, That, subject to the approval of the Governor, and in accordance with subdivision 2 of section 13 of the Civil Service Law, the classification of positions in the exempt class, departmental service, be and hereby is amended by adding thereto: In the office of the Allegany State Park Commission: executive secretary.’ ” The decision to so classify the position is a matter for the Civil Service Commission rather than for the courts and, unless its discretion is unreasonably or arbitrarily exercised, cannot be disturbed. (Ma tter of Rooney v. Rice, 274 N. Y. 347 .) The exceptions provided for in subdivision 2 of section 22 of the Civil Service Law embrace persons holding the position of secretary under subdivision 2 of section 13, and the petitioner cannot compel the respondents to reinstate him to that position. (Matter of Glassman v. Fries, 271 N. Y. 116 .) We disapprove and reverse the finding of the lower court to the effect that the petitioner was a subordinate employee and we find that his position was that of a secretary within subdivision 2 of section 13 of the Civil Service Law. AH concur, except Harris and Cunningham, JJ., who dissent and vote for affirmance. (The order directs defendants to reinstate petitioner to the position of executive secretary of Commissioners of AUegany State Park.) Present — Crosby, P. J., Cunningham, Dowling, Harris and McCum, JJ.