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17. That petitioner has not been dismissed from any public service for deliquency or misconduct.

18. That petitioner has not made any false statement of any material fact, or practiced or attempted to practice any disception or fraud in his application, in his examination or in securing his eligibility or appontment.

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19. That petitioner is a Veteran of World War II having been honorably discharged from the United States Navy.

20. That petitioner's dismissal is contrary to the facts, arbitrary, capricious and without any basis in fact.

21. That by reason of the premises and the action of the respondent in cancelling and terminating petitioner's certification and appointment, the respondents exceeded the jurisdiction, power and lawful authority vested in them by any statute of the State, and is illegal and void; that 33 there does not exist, nor did the respondents, find any of the factual bases as is prescribed in Section 14, Sub. 4 of the Civil Service Law of the State of New York.

22. That the actions of the respondents are unconstitutional in that they violate Amendment 1 and Amendment 14, of the United States Constitution, and they further violate Article 1, Section 3 and Article 1, Sections 6 and 11 of New York State Constitution.

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23. That, upon information and belief, petitioner had successfully completed his six months probationary period as a patrolman of the Police Department, and as such was entitled to all the privileges and protection of Section 22 of the Civil Service Law of the State of New York.

24. That petitioner hereby demands a trial before the Court and a Jury of any triable issues raised by the pleadings and accompanying pa

35 pers.

25. That the petitioner has no adequate remedy at law.

WHEREFORE, petitioner requests that the Court grant an order pursuant to Article 78 of the Civil Practice Code, for:

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1 Vacating and setting aside the action of the respondent Municipal Civil Service Commission of the City of New York in determining that petitioner was “not qualified medically” for patrolman in the Police Department of the City of New York and the actions of the Commission in revoking the petitioner's certification and requiring the Police Commissioner to terminate his appointment to such position, and

2. Directing the respondent Francis W. H. Adams, as Police Commissioner of the Police Department of New York to vacate and set aside his determination of petitioner's appointment on April 15, 1954 and to restore and reinstate the petitioner as Patrolman in said Police Department of the City of New York as of April 16, 1954, and

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3. Awarding to the petitioner the difference between the compensation of Patrolman, and the amount of compensation received from any other employment or occupation from April 16, 1954 to the date of his said restoration to said petitioner, and

4. For such other and further relief as to the Court may be deemed just and proper.

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PLEASE TAKE FURTHER NOTICE that pursuant to Section 1295 of the Civil Practice Act, the petitioner hereby demands a trial before the Court and a Jury of any triable issues raised by pleadings and accompanying papers.

Dated: Brooklyn, N. Y., May 14, 1954.

ANDRE MURPHY,

Petitioner.

(Verified by Andre Murphy on May 14, 1954.)

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Exhibit I, Annexed to Petition.

EMBLEM

THE CITY OF NEW YORK MUNICIPAL CIVIL SERVICE COMMISSION 299 Broadway, New York 7, N. Y.

April 9, 1954

Mr. Andre E. Murphy
723—8th Avenue
Brooklyn, N. Y.

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Dear Sir:

Re: Patrolman, Police Department—list

#4091 (1951 list)

The Civil Service Commission at its meeting held today directed that you be marked not qualified medically on the eligible list indicated, pursuant to Section 14 of the Civil Service Law. The Police Department has been requested to terminate your services.

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Very truly yours,

Frank A. Schaefer
FRANK A. SCHAEFER
Secretary

mp/2198-A
Sec. 24

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Answer.

SUPREME COURT OF THE STATE OF

NEW YORK,

COUNTY OF NEW YORK.

[SAME TITLE]

Respondents, for their answer to the petition herein, by Adrian P. Burke, Corporation Counsel 44 of the City of New York, show to this Court and allege:

FIRST: Deny each and every allegation contained in paragraphs “10,” “11," “12,” “13,” “14,” “20,?” “21,” “22” and “23."

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SECOND: Admit each and every allegation contained in paragraphs “1,” 2,” “3," "4," "5," “6,” 7,8,” “9," “15," “16," "17" and “18.”

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THIRD: Deny that they have knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph “19.”

FOR A COMPLETE DEFENSE TO THE PETITION

HEREIN, RESPONDENTS ALLEGE:

FOURTH: Petitioner was duly certified by the Municipal Civil Service Commission as eligible for appointment as a probationary patrolman on September 28, 1953.

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