
    In the Matter of the Application of Ferdinand W. Wisner, Respondent, for a Mandamus Order against John S. Thorp, County Clerk of Nassau County, Appellant.
   Alternative mandamus order reversed on the law and motion denied, without costs, as a matter of law and not in the exercise of discretion. Petitioner was a deputy county clerk and as such came within the exception noted in section 22 of the Civil Service Law. When the occasion arose he was empowered and required to take the place of his principal. (Matter of Byrnes v. Windels, 265 N. Y. 403.) The appointments of the petitioner and his duties as a deputy county clerk, as defined by law, are conclusive that in supervising the work of indexing and reindexing the conveyances, mortgages, etc., in Nassau county, he acted within the scope of a deputy. This record presents no question of fact to be determined. Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.  