Opinion
July 13, 1970
In two separate proceedings under article 78 of the CPLR, (1) the first to annul the appointment of respondent Doyle as Police Chief III of the Town of East Hampton and to direct recanvassing of the civil service eligible list established as a result of civil service examination No. 7-217 for appointment to that position and (2) the second for similar relief (the petitioners in both proceedings are the same), the consolidated appeals are from two orders of the Supreme Court, Suffolk County, both dated May 1, 1969, one in each proceeding, which respectively dismissed the separate sets of petitions in the proceedings. Order in proceeding No. 1 modified, on the law and in the exercise of discretion, so as to add a provision that the dismissal of the petitions is without prejudice to the service by petitioners of an amended petition or petitions setting forth all the ultimate facts petitioners claim entitle them to the relief they seek, and particularizing the relief sought against the respective respondents. As so modified, order affirmed, without costs. Such amended petition or petitions shall be served on respondents' attorneys within 20 days after entry of the order hereon and respondents shall serve their answers within 20 days after service of the amended petition or petitions. Appeal from order in proceeding No. 2 dismissed, without costs, as academic. In our opinion, Special Term erred in ruling that the legality of the appointment of respondent Doyle as Police Chief III of the Town of East Hampton, in alleged violation of the Civil Service Law, may only be determined in a quo warranto proceeding. Special Term may determine that question, and the other questions raised by the parties herein, in a proceeding under article 78 of the CPLR (cf. CPLR 104, 7803; Civil Service Law, § 102; Matter of Andresen v. Rice, 277 N.Y. 271; Matter of Policemen's Benevolent Assn. of Westchester County v. Board of Trustees of Vil. of Croton-on-Hudson, 21 A.D.2d 693, 694; Matter of Brescia v. Mugridge, 52 Misc.2d 859, 862, affd. 29 A.D.2d 632; Matter of Felice v. Swezey, 278 App. Div. 958; Harrell v. Goldin, 124 N.Y.S.2d 627). The relief, if any, to which petitioners may be entitled in such proceeding shall be determined by Special Term in the light of the evidence to be presented at the trial to be held herein. We agree with Special Term that petitioners did not have the right to institute the second proceeding for substantially the same relief as had been sought by them in the first proceeding, after Special Term had rendered its decision dismissing the petitions in the first proceeding and before the entry of the order on that decision (cf. Matter of Carey v. Moore, 244 App. Div. 763; 2 Carmody-Wait 2d, New York Practice, § 8:103). However, since all questions concerning the appointment of a Police Chief from the civil service list established as a result of civil service examination No. 7-217 can be determined by Special Term in the first proceeding, we are dismissing the appeal taken by petitioners from the order in the second proceeding, as academic. Rabin, Acting P.J., Hopkins, Munder, Martuscello and Brennan, JJ., concur.