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Foy v. Brennan

Supreme Court of New York, Appellate Division

April 26, 1955

Foy
v.
Brennan

APPEALS from an order of the Supreme Court at Special Term (EDER, J.), entered in New York County on April 13, 1954, which denied motions by appellants for a dismissal of the petition in this proceeding under article 78 of the Civil Practice Act. The order also granted leave to appeal.

COUNSEL

Page 671

Irving L. Rollins of counsel (Wendell P. Brown with him on the brief; Nathaniel L. Goldstein, Attorney-General, attorney), for Civil Service Commission of State of New York, appellant.

Harold L. Warner of counsel (Edward L. Cox, Jr., with him on the brief; Harold L. Warner, attorney), for New York City Transit Authority, appellant.

W. Bernard Richland of counsel (Bernard Friedlander with him on the brief; Adrian P. Burke, Corporation Counsel, attorney), for Municipal Civil Service Commission of the City of New York and others, appellants.

Sidney A. Fine of counsel (Morris Weissberg and Lester G. Knopping with him on the brief; Sidney A. Fine, attorney), for respondents.

BREITEL, J.

Petitioners, car maintainers on the municipal subways in New York City, bring this proceeding under article 78 of the Civil Practice Act. Attacked as invalid are certain resolutions, classifying positions of car maintainers and allocating salaries to such positions. The resolutions were adopted in 1942 and 1943 by the municipal civil service commission, one without the approval of the Mayor and the State Civil Service Commission, and the others with such approval, but not otherwise in compliance with the statute.

The administrative agencies appeal from denial of their motions to dismiss the petition on the grounds that the relief sought is barred as a matter of res judicata; that on the merits petitioners are not entitled to the relief sought; and, lastly, that the proceeding is barred by the short Statute of Limitations (Civ. Prac. Act, § 1286).

The petition avers, among other things, that the resolutions purporting to classify and fix salaries for the positions of petitioners in the civil service were invalidly adopted. The alleged invalidity consists in the failure to give notice, conduct hearings and obtain approval of the Mayor and the State Civil Service Commission in accordance with the procedure mandated by the statute (Civil Service Law, § 11, subd. 2).

The order denying the motions should be reversed and the petition dismissed, but only because the petition sets forth its allegations in such confusing form that it is not possible, without unnecessary difficulty and speculation, to spell out the remedy to which petitioners may be entitled. The situation is further confused by the prayer for relief which is improper in that it seeks relief barred by the decision in the earlier and

Page 672

related case in the Court of Appeals. (Matter of Corrigan v. Joseph, 304 N.Y. 172.) In dismissing the petition, however, it is our view that this proceeding is not barred by section 1286 of the Civil Practice Act, and that, consequently, petitioners are entitled to leave to amend their petition.

Because the petition attacks the validity of the procedure in the adoption of classification resolutions by the municipal civil service commission, the four months' Statute of Limitations is not measured from the date of the resolutions but from refusal after demand made upon the commission to adopt proper resolutions. (Civ. Prac. Act, § § 1284, 1286; Matter of Beggs v.Kern, 172 Misc. 556, 566, affd. 258 App.Div. 1049, mod. on other grounds, 284 N.Y. 504; cf. Matter of Moskowitz v. LaGuardia, 183 Misc. 33, 40, affd. 268 App.Div. 918, affd. 294 N.Y. 830, and Legg v. Brandt, 261 App.Div. 319; see Matter of Cash v. Bates, 301 N.Y. 258, 261.) Indeed, if that were not so, the Court of Appeals would not have considered the merits with respect to wage scales in the predecessor case to this one, nor would it have struck down earlier actions of the board of transportation. (Matter of Corrigan v. Joseph,supra.) With respect to the February 25, 1943, resolution (adopted December 29, 1942, and approved by the Mayor and the civil service commission in February, 1943), the Court of Appeals made it clear that the resolution was not subject to attack in the proceeding before it because the commission was not a party (304 N.Y. at p. 186, footnote). In the present ...


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