Order of the Supreme Court, New York County, entered in this article 78 proceeding on October 14, 1969, reinstating the deceased to the office of Sergeant in the Police Department and remanding the matter to respondent for such action as it may deem appropriate, unanimously reversed, on the law, without costs and without disbursements, and the petition dismissed. By operation of law the office held by the decedent became vacant upon his conviction of a felony. (Public Officers Law, § 30, subd. 1, par. e). The decedent appealed his conviction to the Appellate Division, which unanimously affirmed. (See 27 A.D.2d 704.) He then appealed to the Court of Appeals and, while the appeal was pending, he died. Due to his death the Court of Appeals dismissed the appeal and directed a vacatur of the conviction and a dismissal of the indictment. ( 20 N.Y.2d 770.) The vacatur, because of death while the appeal was pending, did not restore the decedent to his former office. ( Matter of Obergfell, 239 N.Y. 48; Tourjie v. Noeppel, 120 N.Y.S.2d 478; Matter of Pauley v. Noeppel, 1 Misc.2d 928; Matter of Smith v. Noeppel, 204 Misc. 49.)
Concur — Stevens, P.J., Capozzoli, McGivern and Tilzer, JJ. [ 59 Misc.2d 1053.]