Opinion
June 24, 1946.
Order granting motion of respondent for an order directing his reinstatement to the position of probation officer in the County Court, Kings County, as of July 17, 1945, and directing the City Comptroller to amend the County Court payrolls to provide for payment to respondent of back salary from July 17, 1945, to the date of his reinstatement, reversed on the law, without costs, and the matter remitted to the Special Term, Kings County, to determine the triable issue of fact that has been duly raised as to whether or not the appointing officers determined that respondent's services during his probationary period had been unsatisfactory, and as to whether such determination, if any, was arbitrary and capricious; and to make a final order in accordance with the provisions of section 1295 of the Civil Practice Act. Under section 9 Civ. Serv. of the Civil Service Law and rule XII of the Rules for Classified Civil Service, petitioner's appointment on April 17, 1945, to the position of probation officer was limited to a probationary period ending July 16, 1945. Section 6 of article V of the Constitution of the State of New York, as amended, providing that a preference be given to disabled veterans, does not exempt them from demonstrating their merit and fitness during a probationary period; nor does section 22 Civ. Serv. of the Civil Service Law require that a probationary appointee, even a disabled veteran, be accorded a hearing on charges. ( Matter of Losee v. Wallace, 259 App. Div. 722; see also Report of the Subcommittee on Executive Administration and Powers of the 1938 New York State Constitutional Convention Committee [Vol. VIII, pp. 181, 188].) The papers, however, present issues of fact as to whether or not the appointing officers determined that petitioner's services during his probationary period had been unsatisfactory, and as to whether such determination, if any, was arbitrary and capricious. Lewis, P.J., Hagarty, Johnston, Adel and Nolan, JJ., concur.