
    The People of the State of New York ex rel. George Curran, Respondent, v. The Board of Trustees of the Village of Albion, Appellant.
    
      Village civil service — appointment of a poundmaster upon whom the duties of a janitor are imposed — right to appoint a new incumbent on the expiration of his term of office as poundmaster.
    
    The charter of the village of Albion (Laws of 1879, chap. 148) provided in section 5 of title 8 thereof that the appointive officers should be selected by the board of trustees and should hold office during the pleasure of said board, but not longer than one year, except in case of reappointment. It also provided in section 8 of that title that among the appointive officers should be a pound-master.' In recent years the board of trustees of the village had provided .no pound, .but they imposed upon the poiindmaster, as they had power to do under the provisions of the charter, the duties ordinarily performed by a janitoil, the poundmaster being known as poundmaster and janitor. In 1899.. the board of trustees appointed a veteran to this office, and after he, .had held the office for a year appointed a successor.
    
      -Held, that the veteran occupied the office of poundmaster and that his term ' expired at the end of one year, and that he was not an employee of the village ■ who could not be removed except upon charges made and a trial had after notice to him.
    Adams, P. J., and Spring, J., dissented.
    ■ Appeal by the defendant^ The Board of Trustees of the Tillage of Albion, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Orleans on the 9th day of November, 1900, directing the issuance of- a peremptory writ of mandamus requiring the said board of trustees to forthwith remove Daniel Sweeney from the position of janitor of the village building and to reinstate and reappoint- the relator to-said -position.
    
      Isaac S. Signor, for the appellant.
    
      Thomas. A. Kirby, for the respondent.
   Williams, J.:

The order appealed from should be reversed, and the motion for a mandamus denied.

The order was made under a misapprehension as to the facts,. The court regarded the respondent, during the year prior to the appointment of his successor, as holding the position of janitor merely, when in fact he held the office of poundmaster, as shown by the petition and the affidavits made by the appellants. The petition stated, among other things, “ that he (petitioner) claimed to be entitled to-hold the position of janitor and poundmaster ; * * * that the petitioner, from the 24th day of March, 1899, down to the 19th day of .March, 1900, had acted in and discharged the duties of the position herein referred to, having been duly appointed to such position by the Board of trustees,” etc., and the prayer for relief was that “ an order to show cause issue * * * directing and requiring the * * f. Board of trustees * *■ * to show cause. *.* * why a peremptory writ of mandamus should not issue, requiring-the said Board to remove the said Daniel Sweeney from the office of janitor * * - * and poundmaster, * ■ * * and to reinstate and reappoint your petitioner to the said office,” etc. The president of the village in his affidavit testified “ that the said Curran was appointed janitor and poundmaster on the 20th day of March, 1899, and* held his position until the 19th day of March, 1900.” The .court was in error, therefore, in regarding the respondent during the year prior to the appointment as holding the position of janitor merely and not the office of poundmaster. There was no office provided for by the charter known as janitor, but there was an office appointive by the trustees, known as poundmaster, whose duties were provided for.

The charter was originally passed by the Legislature in 1842, and was chapter 125 of the laws of that year. It was amended and fully re-enacted in 1879, and was chapter 142 of the laws of that year.' Some of its provisions were amended in 1900 by chapter 646 of the laws of that year, which took effect April twenty-fourth of that year, after the appointment of respondent’s successor. By section 2 of title 2 of chapter 142 of the Laws of 1879 it was provided that among the appointive officers of the village should be a poundmaster. This section was amended by the act of 1900, but the provision as to poundmaster was retained, indicating an intent not to abandon this office. By section 5 of the same title it was provided that the appointive officers should be selected by the board of trustees, and should hold office during the pleasure of said board, but not longer than one year, except in case of reappointment. By subdivision 12 of section 6 of title 4 it was provided that the board of trustees should have power to establish and regulate a public pound, and to restrain cattle, etc., and to authorize the impounding of the same, etc., and by section 9 of title 5 it was provided that the poundmaster should have the powers and perform the duties conferred and imposed upon him by this act and upon town poundmasters by any statute of this State, and such other lawful powers and duties as the board of trustees might prescribe. It appears that this board of trustees had provided no pound recently, and that, therefore, there were no duties peculiarly connected with that office to perform, but the board had power, under the provision of the charter above referred to, to confer and impose any -other duties upon the poundmaster which it might prescribe, and the duties ordinarily performed by a janitor seem to have been imposed upon the poundmaster, and then he was known as poundmaster and janitor. The real office, however, was poundmaster. To this office • the respondent was appointed. He held the office for one year: Then, .liis term of office expired, and his successor was appointed. The court made the order upon the theory that the respondent held • no office, but merely a position as employee, and that while an appointment to office would expire at the end of one year, such employment would be without any term, and the respondent could not be removed under the Civil Service Law, so called (Laws of 1884, chap. 312, § 1, as amd. by Laws of 1896, chap. 821, and Laws of 1899, ■ chap. 370, § 21), except upon charges made and a trial had after • notice to him. We have seen, however, that the respondent held an appointive office and that such office expired when the appointment of the respondent’s successor was made. The board did-not remove the respondent from his employment, but appointed another person to the office at the expiration of respondent’s term. The order granting a peremptory writ of mandamus was, therefore, improperly made. In the event respondent claimed the right to be reappointed to the office, his fitness to hold the office would be involved, and a question of fact arising as to such fitness, an ■ alternative writ, would be the proper remedy. (Laws of 1899, chap. 370, § 21.) The papers do not seem, however, to be sufficient to enable this court to afford such relief.

The . order appealed from should be reversed, with- ten dollars costs and .disbursements, and the motion for a peremptory writ of mandamus denied, with ten dollars costs, without prejudice to the respondent’s right to move for an alternative writ, if so advised.

'McLennan and Láughlin, JJ., concurred; Spring, J., and Adams, P. L, dissented.

Spring, J.

(dissenting):

The relator performed the duties of janitor, which was a mére employment and not one of the offices enumerated in the village charter. It existed in name, but there was no pound and no services had been performed in connection with it for several years; When; the relator was employed it was expected he would act as janitor, and he did so. When it was deemed necessary to displace him.the position of poundmaster was resurrected to give a- pretext for his summary removal. He was employed as janitor but removed' as a poundmaster in order to evade the preference to which lie was entitled as a veteran.

The order granting the peremptory writ of mandamus should be affirmed, with ten dollars costs and disbursements to the relator.

Adams, P. J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion for peremptory writ of mandamus denied, with ten dollars costs,: without prejudice to the respondent’s right to move for an alternative writ if so advised.  