
    In the Matter of the Application of John T. Mullane, Appellant, for a Mandamus Order against John McKenzie, Commissioner of Docks of the City of New York, and Others, Respondents.
    First Department,
    November 1, 1935.
    
      John B. Doyle, for the appellant.
    
      Arthur Bainbridge Hoff, Jr., of counsel [Paxton Blair with him on the brief; Paul Windels, Corporation Counsel], for the respondents.
   Per Curiam.

The order resettling the original order of reinstatement and which struck out the provisions for the payment of back salary, and the order denying the petitioner’s motion to punish the defendants for contempt, affirmed by us (245 App. Div. 711), are not to be deemed res judicata upon the question here involved. We are of opinion that the petitioner is entitled to the benefits of chapter 734 of the Laws of 1935, effective May 6, 1935, which amended section 23 of the Civil Service Law. (See Matter of Deth v. Castimore, 245 App. Div. 156.) The allegation of the petition that the petitioner was without employment or occupation and received no earnings "or compensation whatsoever during the period here involved is not contradicted and must be accepted as true.

It follows, therefore, that the order should be reversed, with twenty dollars costs and disbursements, and the motion for a peremptory order of mandamus granted.

Present — Martin, P. J., Merrell, McAvoy, O’Malley and Townley, JJ.

Order denying petitioner’s motion for a mandamus order, requiring defendants to pay him his salary as dockmaster from May 16, 1934, to December 1, 1934, unanimously reversed, with twenty dollars costs and disbursements, and the motion for a peremptory order of mandamus granted. Settle order on notice.  