Opinion
March 6, 1950.
Proceeding under article 78 of the Civil Practice Act to annul and set aside a determination by respondents made after a hearing held pursuant to statute, transferred to this court under section 1296 of the Civil Practice Act. The determination of the acting city manager of the city of Yonkers, dated March 7, 1949, holding that petitioners, employees of the City of Yonkers, had violated section 22-a Civ. Serv. of the Civil Service Law by failure to report for work on certain stated days, the determination of the city manager of the city of Yonkers, dated March 19, 1949, sustaining and ratifying the said determination of the acting city manager, and the decision of the city manager, dated June 3, 1949, made after hearing held upon request of petitioners, finding and determining that petitioners violated the provisions of section 22-a Civ. Serv. of the Civil Service Law are hereby vacated, cancelled and annulled on the law, with $50 costs and disbursements to petitioners. Violation of section 22-a Civ. Serv. of the Civil Service Law may be established only by proof that the persons charged with such violation failed to report for duty, or willfully absented themselves from their positions, or effectuated a stoppage of work, or abstained in whole or in part from the full, faithful and proper performance of the duties of their employment, for the purpose of inducing, influencing or coercing a change in the conditions, or compensation, or the rights, privileges or obligations of their employment. (§ 22-a, subd. 1.) The record in this case not only does not present any evidence whatever of any such purpose upon the part of petitioners, but, on the contrary, such evidence as was adduced establishes that the proven acts and conduct of the petitioners were motivated by an entirely different reason which was innocent of any violation of the statute, its intent and purport. Subdivision 6 of section 22-a Civ. Serv. of the Civil Service Law is intended to designate those public employees who may request a hearing to establish that they did not violate the provisions of subdivision 1 of that section. (McKinney's Cons. Laws of N.Y., Book 1, Statutes [1942 ed.], § 98.) Carswell, Acting P.J., Johnston and Sneed, JJ., concur; Adel and MacCrate, JJ., concur in the result.