
    In the Matter of James H. Ricker, Respondent, against Village of Hempstead et al., Appellants.
   In a proceeding instituted pursuant to article 78 of the Civil Practice Act for reinstatement of respondent as chief of police of the Tillage of Hempstead, the Tillage, through the mayor and board of trustees, appeals from two orders, the first of which directs the reinstatement of respondent, and the second of which denies the motion of appellants for leave to serve and file an amended answer and other proof purportedly showing evidentiary facts entitling them to a trial. Orders unanimously affirmed, with one bill of ten dollars costs and disbursements. It is conceded that respondent is entitled to reinstatement as chief of police pursuant to section 188-Z of the Tillage Law, if he was appointed to that position by the board of trustees, rather than promoted thereto pursuant to section 188-c of the Tillage Law. The presumption that the board of trustees acted in a legal manner and did not attempt by illegal procedure to do what they could do legally is conclusive, in the absence of proof to the contrary, in the light of their failure to require a competitive examination and their use of the term “ appointed ” in the resolution designating respondent as chief. The alleged facts contained in the proposed amended answer and the exhibits and affidavits annexed thereto are insufficient to create an issue. Present — Hagarty, Acting P. J., Carswell, Johnston, Adel and Lewis, JJ. [See post, p. 878.]  