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O'Reilly v. Grumet

Supreme Court of New York, Appellate Division

June 21, 1954

In the Matter of STEPHEN P. O'REILLY et al., Appellants,
v.
JACOB GRUMET, as Commissioner of the Fire Department of the City of New York, Respondent.

Page 441

APPEAL from an order of the Supreme Court at Special Term (AURELIO, J.), entered December 4, 1953, in New York County, in a proceeding under article 78 of the Civil Practice Act. The order denied an application by petitioners, captains in the New York City fire department, for an order annulling a determination of the fire commissioner which assigned them to perform the duties of battalion chiefs and enjoining such out-of-grade designations.

COUNSEL

Murray A. Gordon of counsel (Bernard Jacobson and Paul Wilensky with him on the brief; Daniel & Bernard Jacobson, attorneys), for appellants.

Victor J. Herwitz of counsel (Seymour B. Quel with him on the brief; Adrian P. Burke, Corporation Counsel, attorney), for respondent.

BOTEIN, J.

Petitioners, who are captains in the fire department of the City of New York, appeal from an order denying their application under article 78 of the Civil Practice Act for an order to review and annul the determination of the fire commissioner designating them to perform the duties of battalion chiefs and to restrain the respondent commissioner from continuing to designate them for such out-of-grade functions and duties.

All of the petitioners are presently captains who have passed the competitive civil service examination for the next higher position of battalion chief. They are on the appropriate eligible list for appointment to the latter position. Petitioners complain that instead of filling vacancies from the eligible lists in the normal, prescribed procedure, respondent in recent years has regularly followed the practice of ordering them and other captains to perform the duties of battalion chiefs, without paying them the salaries carried by the higher positions. For example, it is conceded that petitioner O'Reilly was promoted to

Page 442

the rank of captain on January 1, 1949, and that ever since he has continuously served full time as an acting battalion chief by 'temporary appointment'. The other petitioners have served more than 50% of their working time in stated years as a result of similar temporary designations.

On the record before us it is impossible to determine just how many so-called 'permanent' vacancies for battalion chief exist, but such a finding is not essential to a determination of this matter. It is clear that there are some vacancies, on a permanent basis, in those positions. Respondent contends that there are no vacancies for battalion chief because the budget director has issued no budget certificates authorizing respondent to appoint eligibles to that position. It is undisputed that the budget director has approved a quota of 202 battalion chiefs and that the present number of employees holding permanent appointments in that grade is 198, leaving 4 permanent vacancies on the basis of the city's own personnel structure; but the budget director has issued no budget certificates which would enable the commissioner to fill even these four vacancies. Petitioners, by an elaborate formula estimating the number of battalion chiefs regularly deployed to fill vacancies in the still higher position of deputy chief, and by using other factors, estimate that 47 more battalion chiefs are 'required'.

However, the personnel requirements of the fire department of themselves cannot enlist the protective arm of civil service. Generally speaking, the civil service does not create positions, but prescribes standards and safeguards for the persons who will fill the positions ( Matter of Ross v. LaGuardia, 287 N.Y. 28). The concern of the civil service program is that 'Appointments and promotions in the civil service * * * shall be made according to merit and fitness'. (N.Y. Const., art. V, ยง 6.) Whether a department is undermanned or overmanned is a matter of internal management and falls within an area into which courts are loath to intrude without specific mandate (Matter of Walsh v. LaGuardia, 269 N.Y. 437, 442). We therefore do not entertain the issue tendered by petitioners of whether the fire department employs too few or too many battalion chiefs than are necessary to perform their duties adequately. We only consider whether they are employed in conformity with civil service laws and regulations.

For the same basic reasons we must reject the excuse advanced by respondent that he has made and continues to make fruitless requests to the budget director for increased personnel. Of

Page 443

course respondent cannot make appointments until funds are available to pay salaries; and the requisite funds are released only through the issuance of budget certificates by the budget director. This refusal of the budget director to issue such certificates means that there are no vacancies in the position of battalion chief to which respondent can appoint petitioners permanently from the civil service eligible list. But this impasse cannot be availed of by respondent to fill the positions on a permanent basis without benefit of civil service--even though it is not questioned that respondent is animated by the highest motives and that this procedure is not a ...


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