Berke v. Schechter

Desmond, J. This proceeding (Civ. Prac. Act, art. 78) was brought to review the action of the New York City Civil Service Commission in removing petitioner’s name from the eligible list for appointment as patrolman, Police Department, on the ground that he had failed to show that he was a person of good character. After a trial a final order was entered which denied the application and dismissed the proceeding on the merits and, in addition, granted petitioner leave to apply de novo to the Civil Service Commission for a certification, and, [572] in the event of a denial, to apply to the court under article 78 for an order directing certification. From that Trial Term determination petitioner took no appeal at all to the Appellate Division although the order had in plain words defeated his petition “ on the merits ” (see Civ. Prac. Act, §§ 1295, 1300). The city appealed to the Appellate Division from so much of the lower court order as granted petitioner leave to apply anew for a certification. The Appellate Division struck out that latter provision but otherwise affirmed the Trial Term order. In so doing the Appellate Division correctly pointed out that “ The dismissal of the petition on the merits determines the propriety of the act complained of, i.e., the striking of the petitioner’s name from the eligible list ” and that, since there was no appeal to the Appellate Division from that part of the order, it could not be reviewed in the Appellate Division. As to the second part of the Trial Term order (granting leave to petitioner to apply de novo for certification) the Appellate Division stated — again correctly — that the striking of petitioner’s name had been confirmed by an order from which no appeal was taken and that there could be no certification unless of a name appearing on the eligible list. Petitioner then appealed to this court and now asks us to review the merits of his claim. However, when he failed to appeal the “ on the merits ” dismissal to the Appellate Division, he lost forever his right to litigate it further. The second part of the Trial Term order (granting the right to apply de novo, etc.) is here for review but we agree with the Appellate Division that it was beyond the power of Trial Term to grant. The order appealed from should be affirmed, with costs.