
    Matter of the Application for a Writ of Mandamus of John Edward Reilly v. Robert A. C. Smith, Individually, etc., and as Commissioner of the Department of Docks and Ferries of the City of New York.
    (Supreme Court, New York Special Term,
    November, 1915.)
    Civil Service Law — Spanish-American veteran — mandamus to compel reinstatement.
    Section 22 of the Civil Service Law relating to veterans of the Spanish-American war does not give them a preference “ in appointment and promotion ” which includes a preference “ in retention ” but provides only that no such veteran who holds a position, etc., shall be removed except for ineompeteney or misconduct shown after a hearing upon due notice and stated charges and that if his position is abolished or becomes unnecessary for reasons of economy or otherwise he shall be transferred to any. branch of the service he shall be fitted to fill, meaning in ease a vacancy exist; otherwise his name shall be put on a special list.
    Laying off or suspension for lack of work or lack of appropriation, no one else being appointed to fill the position, is in effect abolishing the position and not a removal within the meaning of the statute.
    Where petitioner for a writ of mandamus to compel his reinstatement in the civil service claims to have been removed without a hearing but concedes and alleges that he received a letter “ laying him off ” on the ground of lack of work and lack of appropriation and for the purpose of reducing the force and does not specifically deny that his services were dispensed with for lack of appropriation or work or that his removal was in bad faith for the purpose of removing him without a hearing, his application will be denied.
    Application for a writ of mandamus.
    L. T. Fetzer, for relator.
    Frank L. Polk (Elliot S. Benedict, of counsel), for defendant.
   Pendleton, J.

Application by a veteran of the Spanish-American war for a writ of mandamus to compel his reinstatement in the service of the city. Section 22 of the Civil Service Law, relating to veterans of the Spanish-American war, does not give them a preference ‘ ‘ in appointment and promotion ’ ’ which includes a preference “ in retention ” (Matter of Stutzbach, 62 App. Div. 219; affd. 168 N. Y. 116) as is given under section 21 to veterans of the Civil War, but provides only that no veteran of the Spanish-American War who holds a position, etc., shall be removed except for incompetency or misconduct shown after a hearing upon due notice and stated charges, and that if his position is abolished, or becomes unnecessary for reasons of economy or otherwise, he shall be transferred to any branch of the service in such position as he may be fitted to fill, meaning in case a vacancy exists (Matter of Breckenridge, 160 N. Y. 103); otherwise his name shall be put upon a special list, etc. Laying off, or suspension for lack of work or lack of appropriation, no one else-being appointed to fill the position, is, in effect, abolishing the position, and not a removal. People ex rel. Davison v. Williams, 213 N. Y., 130; Randolph v. Smith, N. Y. L. J., March 20, 1915, Lehman, J.; Hurlburt v. Cromwell, Id., Oct. 14, 1912, Greenbaum, J.; Petty v. Kracke, Id., Jan. 28,1915, Manning, J. Relator concedes he is not entitled to a peremptory-writ, but claims that there is a disputed material fact, and an .alternative writ should be granted. The petitioner claims to have been removed without a hearing; he concedes, and alleges that he received a letter ‘ ‘ laying him off ” on the ground of lack of work and lack of appropriation and for the purpose of reducing the force. There is no denial in the petition that there was a lack of appropriation, or that relator’s services were dispensed with on that account and to reduce the force, nor is it alleged that the proceedings' were in bad faith, or for the purpose of removing him without a hearing. It is true the petition alleges that relator’s position did- not become unnecessary and was not abolished for reasons of economy or otherwise, but is existing and the duties are performed by existing employees of a different class, but the facts not being denied the allegation that the position was not abolished is, at most, a denial of a legal conclusion only, and does not entitle relator to a writ. People ex rel. Corrigan v. Mayor, 149 N. Y. 215; Knapp v. City of Brooklyn, 97 id. 520; People ex rel. Griffin v. Williams, 168 App. Liv. 63; Randolph v. Smith, supra. The fact, even if true, that the work is done by employees of another class, does not show, or tend to show, that relator’s position continued in the absence of an allegation that another was appointed to the position. The head of a department has the right, and it is his duty, to prescribe the duties of the various employees (§ 1543 of the charter), and he may distribute the work as he sees fit. The fact that duties theretofore done by an employee laid off for lack of funds are assigned to other persons already in the service does not continue his position. It is a redistribution of work, not the filling of the position, and the proceeding is none the less an abolishment of the position and not a removal. The difference between distributing the duties among existing employees and appointing a new man to the position is apparent. People ex rel. Traphagen v. King, 13 App. Div. 400; People ex rel. Vineing v. Hayes, 135 id. 19; People ex rel. Corrigan v. Mayor, etc., supra; People ex rel. Davison v. Williams, supra; Randolph v. Smith, supra. On the papers no material issue of fact is presented. If the petitioner had specifically denied that relator’s services were dispensed with for lack of appropriation or work, or that the proceeding was in bad faith for the purpose of removing him without a hearing (People ex rel. Vineing v. Hayes, supra), a very different question would have been presented.

Motion denied, with ten dollars costs.  