McCloskey v. City of New York , 241 A.D. 607 ( 1934 )

Order of the Appellate Term modified by providing therein that the judgment of the Municipal Court be modified by deducting from the amount of said judgment the sum awarded as interest prior to the date of the filing of the claim, to wit, December 1, 1931, and judgment of the Municipal Court modified accordingly. As so modified the order of the Appellate Term and the judgment of the Municipal Court are affirmed, without costs in either the Appellate Term or in this court. (Taylor v. Mayor, 67 N. Y. 87; O’ Keefe v. City of New York, 176 id. 297; Sweeny v. City of New York, 173 id. 414; Smith v. Board of Education, 208 id. 84; Stoddart v. City of New York, 80 App. Div. 254.) Young, Hagarty and Tompkins, JJ., concur; Lazansky, P. J., dissents; Davis, J., dissents and votes for reversal of the judgment on the ground that the employment given plaintiff was not of a temporary emergency character as the law requires, but by tricky devices was made of a permanent nature, thereby avoiding the provisions of the Civil Service Law. This was accomplished by making a new appointment to a different position as the “ temporary ” employment expired. The plaintiff did not perform duties appropriate to his different classifications, but was kept in the office as “ confidential agent ” of the superintendent of the department, without change of duties during the entire period of four “ temporary ” employments. In fact it is doubtful if he did any work of value to the city during the whole period. Although the question is not raised directly, the whole transaction appears to have originated and was carried on with a fraudulent purpose.