In the Matter of JOSEPH A. MAYNARD, Appellant,
GEORGE P. MONAGHAN, as Police Commissioner of the City of New York, Respondent.
APPEAL from an order of the Supreme Court at Special Term, entered November 27, 1952, in New York County, denying a motion by petitioner for an order under article 78 of the Civil Practice Act directing the police commissioner of the City of New York to rescind his order dismissing petitioner from the police department of the City of New York and directing said police commissioner to reinstate petitioner as a patrolman in the police department of the City of New York.
Matthew H. Brandenburg for appellant.
Robert E. Hugh of counsel (Seymour B. Quel and Edwin Weiss with him on the brief; Adrian P. Burke, Corporation Counsel), for respondent.
This appeal is from an order denying a motion for a direction that the police commissioner of the City of New York rescind his termination of petitioner's services as a patrolman of the police department of the City of New York, made at the end of the probationary period, and reinstate the petitioner on a permanent basis.
Petitioner passed the requisite civil service examinations, and on October 3, 1951, was duly appointed as a probationary patrolman. He was assigned to the police academy for a course of training and subsequently did precinct police work. He was dropped from the department as unsatisfactory on April 2, 1952. He alleges that he performed his probationary work without dissatisfaction on the part of his superior officers, which is not denied.
The answer of the police commissioner states two reasons for the action taken. It is stated that the petitioner on August 7, 1949, signed a nominating petition for one Benjamin Davis as a candidate of the Communist Party, an independent nominating body; that Davis at the time was a known Communist, who had been arrested and brought to trial for violation of the Smith Act, a Federal statute proscribing membership in subversive organizations. The answer also alleges that the petitioner had at one time been dropped from a position which he held as temporary appointee in the United States Post Office on a charge of collusion in recording attendance time.
Petitioner states that before he was appointed a probationary policeman, the municipal civil service commission inquired into the incident of the Davis petition and was satisfied with his explanation that he signed the same inadvertently without knowing its import; that he never had been associated in any way with Communism or Communists; that, in fact, he was an honorably discharged veteran of the United States Army, having served in actual combat in the European Theatre in World War II, where he received military honors, including four battle stars. He also denies any misconduct in his Post Office position, and points out that he was rehired and served as temporary clerk for two years continuously up to the time of his appointment in the police department.
Special Term denied the motion on the papers, holding that the police commissioner had a wide and practically unlimited discretion in determining the fitness of probationary patrolmen, and that there was no indication in the record to show that the action taken was arbitrary or capricious.
We agree that the appointing officer has a broad degree of discretion in determining whether to make probationary appointees of permanent rank, but do not find that it is 'unlimited'.
The Administrative Code of the City of New York (§ 434a-8.0, subd. c) provides that permanent appointment shall only be made to the position of patrolman in the police department after probationary service as provided in the rules of the civil service. The municipal civil service commission has adopted rule V (§ VIII, subd. 3, par. [a]) which provides for a probationary period of six months, at ...