civil service hearing in New York

1941Taylor and Close, JJ., dissent and vote to affirm the order, with the following memorandum: The question here involved, as we see it, is whether the principle stated in Matter of Shrocki v. Greene ( 242 App. Div. 226, 228 ), viz., that “ Under the civil service rule governing suspension of employees, each grade is a separate entity and seniority is considered among the employees in that grade only ” is sound law or not.

1934Presiding Justice Hill of the Appellate Division, Third Department, said in Matter of Skrocki v. Greene ( 242 App. Div. 226, 228 ): “ under the civil service rule" governing suspension of employees, each grade is a separate entity and seniority is considered among the employees in that grade only.” To hold otherwise would lead to great confusion in the operation of the civil service of the State, and would result detrimentally in the functioning of the public service.

1993In that case, Matter of Sharkey v Police Dept. ( 179 AD2d 655 , supra), the Second Department held that an officer’s conviction for driving while intoxicated following a fatal automobile crash was not sufficient to trigger summary termination; a civil service hearing was needed to develop fully the facts of the incident to determine whether dismissal was warranted.

1993Petitioner also relies on our decision in Matter of De Paulo v City of Albany ( 49 NY2d 994, 996 , supra), in which three Judges of a six-Judge Court stated in dicta that the violation of the oath must be found in the definition of the offense. * The remaining three Judges, although concurring in result, took issue with the definitional approach and argued that the underlying facts should be analyzed: "Obviously in such a case it should be the conduct, not the label placed upon it, which determines the sanction” (id., at 997 [Wachtler, J., concurring]).

1991In O’Brien v O’Brien ( 66 NY2d 576 , supra), the Court of Appeals held that a license to practice medicine, which was acquired during marriage, constituted a marital asset for purposes of equitable distribution.

1940(Cf. Matter of Sloat v. Board of Examiners, 274 N. Y. 367 .) We have not considered other matters referred to by the court below.

1939As was said by the Court of Appeals in Matter of Kraus v. Singstad (supra, at p. 308 ): “ Whatever liberality was allowable in the filling of these positions in 1931 to enable the local bureaus to function does not justify the continuance from year to year, under the guise of emergency, of the employment of thousands in violation of this civil service principle and constitutional mandate.” The right of promotion may not be denied to those who have faithfully served the city and who have .won their right to promotion in the civil service, by a change in title, where, as here, the positions in q

1937This has been tried before in Matter of Ottinger v. Civil Service Comm. ( 240 N. Y. 435 ).

1899A similar question was raised in the case of Rogers v. Common Council of Buffalo, 123 N. Y. 173, 186 , and the Court of Appeals there held that the provisions of the Civil Service Act of 1883, as amended in 1884, was not violative of section 2 of article 10 of the Constitution, and that the powers of the local authorities to select city officers within the meaning of this clause of the Constitution was not subordinated thereby to those of the state authorities.

1898It is now contended that the provisions of the Liquor Tax Law (Chap. 112, sec. 10, Laws of 1896) provide that the special agents “ shall be deemed the confidential agents of the state commissioner,” and that the provisions of the act which Ave have above considered do not apply to any “ person holding a strictly confidential position.” It will be observed that in the Liquor Tax Luav the word “ strictly ” is omitted, but assuming that it Avas the intention of the legislature to make the position of special agents a strictly confidential position, the question then arises as to Avhether it is in

1898It is now contended that the provisions of the Liquor Tax Law (Chap. 112, sec. 10, Laws of 1896) provide that the special agents “ shall be deemed the confidential agents of the state commissioner,” and that the provisions of the act which Ave have above considered do not apply to any “ person holding a strictly confidential position.” It will be observed that in the Liquor Tax Luav the word “ strictly ” is omitted, but assuming that it Avas the intention of the legislature to make the position of special agents a strictly confidential position, the question then arises as to Avhether it is in