
    Benjamin F. Burke, Appellant, v. George Holtzmann, Respondent.
    Third Department,
    January 8, 1906.
    Civil Service Law — action for damages by veteran against apppointing .officer—-when appointing officer cannot question action of municipal commissioners in placing name on eligible list. . -
    When the' name of a veteran has been placed -upon the list of persons entitled to appointment as a laborer by a municipal civil service commissioner without an examination as to his fitness-or habits of industry, etc., he is entitled to appointment before others not veterans lower down bn the list, and it is error to dismiss his complaint in an action for damages against the appointing officer under section 20 of the Civil Service Law on the ground that no examination had been had and that the indorsement of his application for the position was insufficient.
    Having been accepted by the civil service commissioner and placed upon the list of eligibles, it does not lie with the appointing officer to say that such veteran is wrongfully on said list or to make appointments in violation of such veteranas right to priority.
    ■ Appeal by the plaintiff, Benjamin F. Burke, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 15th day of August, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Schenectady Trial Term.
    This action is brought, under section 20 of the Civil Service Law (Laws; of 1899, chap. 370, as amd. by Laws of 1902, chap. 270). The plaintiff was a veteran of the Civil war. In January, 1904, he made application to the secretary of the municipal civil service commission of the city of Schenectady to be placed upon the list of eligibles for work as a laborer upon the city streets. The secretary gave him a blank which he filled out, stating his age, his residence and other details, and that he was a veteran of the CiviL war. The application was indorsed by two citizens and further by-Frank Davis, superintendent of streets of said city. His name was thereupon placed second upon the eligible list book as a laborer. Ho appointment was given him from that time until August eighth, although persons named upon the list who were not veterans were meanwhile employed by the defendant as laborers upon the streets. The action is brought for damages claimed to have been sustained by the plaintiff by reason of the violation of section 20 of the act aforesaid in the defendant’s failure to give to the plaintiff the preference in the appointment to which he claims to have been entitled under the statute. Upon the trial the plaintiff’s complaint was dismissed, to which ruling'exception was taken. From the judgment entered upon this direction of the court this plaintiff here appeals. Further facts appear in the opinion.
    
      Marvin H. Strong and Alvah Fairlee, for the appellant.
    
      Dcmiel Naylon, Jr., for the respondent.
   Smith, J.:

By section 9 of article 5 of the Constitution it is provided' that appointments and promotions in the civil service of the State and of- all civil divisions thereof shall be made according to merit and fitness, to be ascertained so far as practicable by examinations . The Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1902, chap. 270) provides for a division of the civil service into unclassified and classified service. Section 10 of said statute (as amd. by Laws of 1900, chap. 675) provides for the appointment of municipal civil service commissioners to prescribe, amend and ' enforce rules for the classified service in cities. Section 11 provides for four classes in the classified service : First, the exempt ■ class ; ' second, the competitive class ; third, the npn-competitive class, and' in cities the fourth, the labor class. By section 17 it is provided that the labor class in cities shall include unskilled laborers and that vacancies in said class shall be filled by appointment from lists of applicants registered by the municipal. commissions. Preference in employment from such lists shall be given according to date of application,” and it is further provided : “ The commissions shall require an applicant for registration for the labor service to furnish such evidence or pass such examination as they may deem proper with 'respect to his age, residence, physical condi- . tion, ability to labor, skill, capacity and experience in the trade or employment for which he applies.” Section 20 .(as amd. by Laws of 1902, chap. 270) provides for a preference in appointment and promotion to all competitive and' non-competitive positions to veterans of the Civil war. It is therein also provided: “ A refusal to allow the preference provided for in this and the next succeeding section to any honorably discharged soldier, sailor or marine or a reduction of his compensation (intended to bring about his resignation) shall be deemed a misdemeanor, and such honorably discharged. soldier, sailor or marine shall have a right of action therefor in any court of competent jurisdiction for damages and also a remedy by mandamus for righting the wrong.”

Pursuant to- the authority of the statute the municipal civil service commission of the city of Schenectady, duly appointed, promulgated certain rules. Among "these rule 20 provides that blank forms for application will be furnished 'by the municipal civil service commission without charge to all persons requesting the same. Rule 25 provides that applicants for positions under the labor class who produce satisfactory evidence of their capacity for labor and their habits as to industry and sobriety shall be registered in the order of their application; that the register shall state the name, the age, the residence, the citizenship, the number and relationship of the persons depending for support on the applicant, service in the army or navy in time of war, previous occupation, reference, and such other information as may be required. By section 2 of said rule it is provided that whenever the services of employees in the labor class are required the appointing officer shall notify the commission, stating the number of men wanted, the kind of labor for which they are wanted, and the time and place of employment, and the commission is required thereupon to send to such officer the names and the residences of the number of men called for. By section 3 of said rule such appointing officer is then-required to return to the commission the names of those employed with the date of employment'and provides that if a less number •than those certified shall be so employed they shall be those standing ■highest on the register. By section 5 of • said rule it is required : ■“ The commission shall require an applicant for registration for the Labor Service to furnish such evidence as to his fitness, etc., or pass such examination as may be deemied proper by'them, not inconsistent with the law.” By section 19 of the Civil Service Law, payrolls must be certified aftér comparison with the eligible list and a laborer found to be thereupon. ...

From the statute and rules above recited it will be seen that ■this defendant in making appointment of laborers upon the streets was required to ask from the municipal civil service commission a list of eligibles. From that list he was required to make appointment according to priority thereupon.. It is not very material whether this formal application was made to the civil service commission or whether the formal list was given to this defendant. He was required to obtain such before he made any appointments. That the list was before him-in making the appointments is evidenced by the fact that no laborer could receive pay until he was certified by the secretary o-f the commission as béing upon this list. This plaintiff’s name, then, appearing second upon the list for 1904, the defendant was required to give him. employment as a laborer upon the street if there was service to be performed;', This he neglected to do until August of that year while he employed as laborers during . that time men upon the list whose names were below the name of . this plaintiff, over whom plaintiff' was entitled' to preference as a ■veteran. ' " . ■

The defense, urged by the defendant in this action and upon which this complaint has been dismissed is that this plaintiff was not properly upon the eligible list as no examination. was made as to • his fitness for the place and as to his habits of industry and ■ sobriety. , The secretary of the commission swore that he was instructed, whether by the commission or its chairman he did not know, to-place upon the lists the names, of applicants'in the order in which the applications were made, where the application was signed by the superintendent of streets;'that this indorsement of ' the application by.the superintendent of streets was all the evidence that was required of the qualifications of the applicant for position upon that list. The learned trial judge has held that this indorsement of the superintendent of streets is insufficient both under the ( statute and under the rules adopted by the commission to entitle an applicant to' be put upon the list; that it amounts to a delegation of power to the-superintendept of streets to. pass upon the, qualifications of an applicant, which power cannot be delegated by the- commission. We are not prepared to assent to this interpretation of the statute and of the rules of the commission. The statute in section 9 provides that for employment as laborer in the State service no examination or registration shall be required. Section ■10 (as amd. by Laws of 1900, chap. 675) provides for appointments in the city service. ’ The mayor of each city is required by that section to appoint suitable persons “ to prescribe, amend and enforce rules for the classification of the offices, places and employments in the. classified, service of such city, and for appointments rmd promotions therein and examinations therefor; and for the registration and selection of laborers for employment therein, ■not inconsistent with the Constitution and the provisions of this act.” The reading of this section would seem to indicate that no special examination is required for the labor service. Both the.statute and"

• the rules require applicants; for registration for the labor service tp furnish such evidence or pass such examination as the commission inay deem proper as to qualification for such service. Pursuant to rule 20 the plaintiff made request for a blank application of the civil service commission and was given one. This application he filled out. He procured, the indorsement of two citizens and of the superintendent of streets. He has thereby furnished all the evidence that was required or deemed proper by the commission to entitle him to registration upon the list of eligibles for labor service. We are not prepared to say that under this statute and this rule the civil service commission was unauthorized to accept the indorsement of two citizens and of the superintendent of the streets as sufficient evidence of the qualifications of the applicant. The law will hardly be construed to require civil service commissioners to make personal examination as to the qualifications or habits of sobriety or industry of each individual applicant who asks employment as a teamster or laborer upon the streets. The law will presume if need be that sufficient inquiry was made, in addition to the indorsement of the two citizens and of the superintendent of streets, to authorize the acceptance of the applicant as one entitled to a position upon the eligible, list upon which he. was actually placed.

But whether or not this applicant had passed the examination which the law requires, he had conformed to the requirements of the civil service commission and had been actually accepted by them and placed upon the list. The defendant himself made appointments from that list, and it does not lie with hint now to say that the list was improperly made-up, to excuse him from conforming to the requirement of the law that he give the preferences which are indicated to him upon the list furnished. That this list is binding upon defendant would seem to be held in People ex rel. Hamilton v. Stratton (79 App. Div. 149) ; People ex rel. Beck v. Board of Aldermen (18 Misc. Rep. 533) ; People ex rel. Van Petten v. Cobb (13 App. Div. 56). In the Van Petten case it was also held: “ The fact that on his examination the commission chose to rely upon the certificate of the applicant’s physician, and not upon its own examination, as to his physical condition, has no bearing upon the question.” In People ex rel. Mullen v. Sheffield (24 App. Div. 217) Mr. Justice Ingraham, of the first department, in writing of a civil service act says: “ Under the Civil Service Law the appointing power is-compelled to act upon the report of the board of civil service commissioners as to the rating of those examined by it, and to accept from those, certified by. the board' the persons entitled to the appointments or promotions. * *‘ ’ * It is quite apparent that it would destroy the whole system of competitive examinations if the appointing officer-would have a right to go beyond the report-of the board and to refuse to accept it, on the ground that the eligible -list as- presented -by those upon whom t-he responsibility rests of determining who should be upon such eligible list, had not complied.with the provisions of the statute inmalting.Up such list.” Moreover it would hardly be just ‘to this plaintiff to deny him the . right given him by the law because of the failure of the commission to. exact from him more- evidence as to his qualifications.. If the civil service commission had refused, to put his name upon the list lie might then have required the commission to proceed according, to law and make up a list upon which liis name 'should appeal:. With his name already Upon the list, however, no court would listen to a complaint from him that the list was improperly made" up. In our judgment, therefore, this plaintiff', was entitled to his employment whether or not the commission adhered strictly to the law m making up the list of -those eligible for labor service.

The provision of the statute under which this action was- brought was intended to prevent just such discriminations as seem 'here to-have been made. Those intrusted with appointive power, in service' Controlled by the- Civil Service Law, disregard this law at theii" peril. With the extent of plaintiff’s damages we aré not here concerned. If the plaintiff is entitled to any damage his complaint-should not have been dismissed. ■

The- judgment should, therefore, be reversed and a new trial 'granted, with costs to appellant to abide the event.

," All concurred,

Judgment reversed and new trial granted, with costs to appellant to abide event.  