In the Matter of the Application of James Barmonde, Respondent, for an Order of Mandamus against Abraham Kaplan, President, and Others, Members of and Constituting the Municipal Civil Service Commission of the City of New York, and Others, Appellants

In the Matter of the Application of James Barmonde, Respondent, for an Order of Mandamus against Abraham Kaplan, President, and Others, Members of and Constituting the Municipal Civil Service Commission of the City of New York, and Others, Appellants. First Department, June 21, 1934. Edmund L. Palmieri of counsel [Paxton Blair with him on the brief; Paul Windels, Corporation Counsel, attorney], for the appellants. Albert De Roods of counsel [H. Eliot Kaplan, attorney], for the respondent. [MAJORITY — Per Curiam.] Per Curiam. On this appeal the appellants do not question the right of the petitioner to a peremptory mandamus order in so far as the same directs his reinstatement. They do, however, question his right to payment of back salary. Mandamus was a proper remedy in the first instance for the recovery of such salary. (Thoma v. City of New York, 263 N. Y. 402, 407; Matter of Arnow v. Delaney, 241 App. Div. 861.) Petitioner being entitled to reinstatement as of the date of his illegal suspension it was proper to award him back salary. (Matter of Kelly v. Board of Education, 234 App. Div. 239; affd., 259 N. Y. 518; Matter of Spivak, 240 App. Div. 806; affd., 264 N. Y. 491; Bradshaw v. City of Schenectady, 240 App. Div. 746; leave to appeal denied, 262 N. Y. 703.) It follows, therefore, that the order so far as appealed from should be affirmed, with twenty dollars costs and disbursements. Present'—Finch, P. J., Merrell, Martin, O’Malley and Untermyer, JJ. Order so far as appealed from affirmed, with twenty dollars costs and disbursements.