Opinion
February 9, 1942.
Proceeding under article 78 of the Civil Practice Act for an order reinstating petitioner as clerk in the department of public works in the city of New Rochelle. Order dismissing petition reversed on the law and the facts, with fifty dollars costs and disbursements, application granted, with ten dollars costs, and respondents directed to reinstate appellant to the position of clerk in the department of public works of the city of New Rochelle as of the 1st of May, 1941, with back salary from that date to the date of his reinstatement. The petitioner was entitled to have his seniority computed on a basis that included his services before and after his resignation. He was, therefore, senior to Mohr (a fellow clerk) by about eight years. ( Matter of Marcus v. Ingersoll, 266 N.Y. 359, 361.) When petitioner resigned on December 15, 1928, there was not a definitive separation from the service — it was only provisional or tentative, under subdivision 2 of rule XXIII of the Rules of the Municipal Civil Service Commission of the City of New Rochelle. It would not become final until the expiration of one year under that rule. He was reinstated to a position of the same grade in the same service before the expiration of one year. His restoration was not due, as in the Marcus case, to a provisional appointment to a new and different position. He was, therefore, entitled, under the opinion in the Marcus case, to have his renewed service tacked on to his original service "in unbroken line to original appointment." As a matter of substance the pleadings disclose no difference between the duties of the position of the petitioner and of Mohr, and it appears that both are "clerks" in grade 3. In any event, no issue of fact is adequately raised in respect of this phase. ( Matter of Gardiner v. Harnett, 255 App. Div. 106, 108; Civ. Prac. Act, § 1291.) Hagarty, Carswell, Adel and Taylor, JJ., concur; Lazansky, P.J., concurs in the result. Settle order on notice, making appropriate deduction for appellant's earnings, if any, during period covered by the reinstatement. [ 177 Misc. 42.]