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MATTER ARMANDO DEL GIORNO ET AL. v. POLICE DEPARTMENT CITY NEW YORK ET AL. (11/06/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


November 6, 1969

IN THE MATTER OF ARMANDO DEL GIORNO ET AL., APPELLANTS,
v.
POLICE DEPARTMENT OF THE CITY OF NEW YORK ET AL., RESPONDENTS

Concur -- Stevens, P. J., Tilzer, Markewich, Nunez and Bastow, JJ.

Order, entered on or about June 9, 1969, insofar as appealed from, unanimously reversed on the law, without costs or disbursements, the petition reinstated and the prayer for relief granted invalidating the designation of petitioner as a special patrolman by the Police Commissioner of the City of New York. Section 434a-7.0 of the Administrative Code of the City of New York does not authorize the Police Commissioner to designate the petitioner, a civil service employee of the Department of Social Services appointed to the position of special officer, a special patrolman. The section plainly excludes city employees from the Police Commissioner's authority to deputize special patrolmen. An administrative construction given to a statute may not in itself create an ambiguity where the statute is so plain as to leave nothing for construction. The fact that the statute has been re-enacted in the light of such construction, moreover, does not constitute adoption of its administrative construction. (Biddle v. Commissioner, 302 U.S. 573, 582; McGoldrick v. Family Fin. Corp., 287 N. Y. 535, 539; Matter of Kenler v. Murtagh, 24 Misc. 2d 864, revd. on other grounds 12 A.D.2d 662.)

19691106

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