
    In the Matter of the Application of William Conway, Petitioner, Appellant, against William F. Carey, as Commissioner of Sanitation, Department of Sanitation, City of New York, and Joseph C. Zengerle, as Engineer in Charge, Bureau of Final Disposition, Department of Sanitation, City of New York, Respondents.
    First Department,
    November 18, 1938.
    
      Louis P. Brown, for the appellant.
    
      James Hall Prothero of counsel [Paxton Blair and Charles E. Hirsimaki with him on the brief; William C. Chanler, Corporation Counsel], for the respondents.
   Per Curiam.

It is the duty of a department head to eliminate unnecessary positions. (People ex rel. Vineing v. Hayes, 135 App. Div. 19; People ex rel. Kaufman v. Board of Education, 166 id. 58; People ex rel. Chappel v. Lindenthal, 173 N. Y. 524.) However, upon the evidence adduced at the trial there was some proof that petitioner’s civil service position, with compensation at the rate of $4,500 per annum, was abolished, not for reasons of economy, but to make way for the appointment of another to the newly created exempt position of engineering assistant to the commissioner, paying a salary of $5,000 per annum, and that the exempt employee was to perform the duties required of petitioner. There was thus presented an issue of fact as to whether the commissioner of sanitation had abolished the position of superintendent of final disposition in good faith. (People ex rel. Davison v. Williams, 213 N. Y. 130, 134; Matter of Schmidt v. Board of Supervisors, 244 App. Div. 493, 495.) This issue, we think, the court should have submitted to the jury.

The order dismissing the petition on the merits should be reversed, the motion denied, with costs to appellant, and a new trial ordered. The appeals from the order denying motion to vacate and the order denying motion to resettle are dismissed, without costs.

Present — Martin, P. J., Townley, TJntebmyer, Cohn and Callahan, JJ.

Order dismissing the petition on the merits unanimously reversed and the motion denied, with costs and disbursements to the appellant, and a new trial ordered. Appeals from order denying motion to vacate and the order denying motion to resettle unanimously dismissed, without costs.  