16 Notice of Motion. court is asked to exercise its judgment. This it may not do in the absence of arbitrary action. However, the record contains sufficient and sound ground for the action taken and the discretion thus exercised by the respondents may not be substituted or their action disturbed. The motion is denied. Filed July 20, 1954N. Y. County Clerk's office. Dated July 20, 1954. 17 SAMUEL M. GOLD, J. S. C. Briefs : Notice of Motion. NEW YORK, COUNTY OF NEW YORK. 18 [SAME TITLE] SIRS: PLEASE TAKE NOTICE, that upon the annexed petition of Andre Murphy, duly verified the 14th day of May, 1954, together with the attached Exhibit I, the undersigned will move this court at a Special Term, Part I, located at Center and Pearl Streets, New York City, on the 27th day of May, 1954, at 10:00 o'clock in the forenoon of that day or as soon thereafter as counsel can be heard, pursuant to Article 78 of the Civil Practice Act, for an Order: Notice of Motion. 19 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 De- 20 partment 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 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, 21 and 4. For such other and further relief as to the Court may be deemed just and proper. PLEASE TAKE FURTHER NOTICE that pursuant to John A. ESPOSITO, 22 Petition. SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK. [S A ME TITLE] To THE HONORABLE JUSTICE OF THE SUPREME COUNTY OF NEW YORK: 23 The petitioner, Andre Murphy, by his attorney John A. Esposito, respectfully alleges: 1. That petitioner is a citizen of the United States and is a resident of the State of New York, residing at 723—8th Avenue, Brooklyn, N. Y. 24 2. That the respondents, Paul S. Brennan, as President and Thomas B. Dyett and Charles Muzzicato, as member, constitute the Municipal Civil Service Commission of the City of New York, hereinafter called the “Commission”. 3. That the respondent Francis W. H. Adams was and still is the Commissioner of the Police Department of the City of New York, hereinafter designated as Police Commissioner. 4. That petitioner in or about 1951 passed the written and physical examination for patrolman, Police Department of the City of New York and was placed on list No. 4091 (1951 list). 5. That thereafter the respondent Commission certified petitioner for appointment as patrolman in the Police Department of the City of New York. 6. Upon certification by the respondent Commission, the Police Commissioner appointed petitioner as a patrolman in the Police Department of the City of New York on October 16, 1953. 26 7. That petitioner duly qualified for the said appointment and he entered upon the initial appointment and duties as a student at the Police Academy wherein he performed his duties to the satisfaction of his superior officers. 8. That petitioner qualified for and passed all examinations at said academy and in every respect performed his duties as a patrolman in a satisfactory manner. 9. That on the 13th day of April, 1954, petitioner received in the mail a letter dated April 9, 1954 from the Secretary of the Commission stat- 27 ing that the Commission had marked petitioner “not qualified medically” as patrolman of the Police Department, List No. 4091 (1951 list) pursuant to Section 14 of the Civil Service Law. On or about the same time the Commission revoked petitioner's certification and requested the Police Commission to terminate the services of the petitioner. That attached hereto is Exhibit “1” which is a photostatic copy of the letter of the Commission, dated, April 9, 1954. That the Police Commissioner terminated petitioner appointment after his tour of duty on April 15, 1954. 10. That petitioner thereafter inquired of the respondent Commission of the reason for its termination of his certification as mentioned in paragraph “g”, and the Commission, or a representative thereof, refused to talk to petitioner concerning same. 11. That there is absolutely nothing in petitioner's physical and mental condition nor in his religious beliefs and activities which effects his character, fitness and capacity to perform every and any actual or conceivable duty as patrolman in the Police Department of the City of New York. 29 12. That petitioner possessed all the requirements for examination and appointment as patrolman of the Police Department as prescribed in the New York City Administrative Code, Section 434 A-8-0 and in the Civil Service Law of the State of New York. 13. That petitioner does not lack any of the established preliminary requirements for the ex30 amination or position of patrolman. 14. 'That petitioner is not physically disabled as to be rendered unfit for performance of the duties of the position to which he seeks appointment. 15. That petitioner is not addicted to the habitual use of intoxicating beverages to excess. 16. That petitioner has not been guilty of any crime or of any infamous or notorious disgraceful conduct. |
