
    In the Matter of the Application of Michael H. Leach, Appellant, for a Writ of Mandamus, v. John McG. Woodbury, as Commissioner of Street Cleaning of the City of New York, Respondent.
    
      Civil service in New York city — assignment of a street sweeper to duty as an assistant section foreman-—it is not an appointment to a distinct position — it may be revoked by the commissioner.
    
    The assignment, after a civil service examination, of a sweeper employed in the department of street cleaning, in the borough of Manhattan, in the city of New York, to duty as an assistant section foreman in the department, which position is not recognized in the statute organizing the street cleaning department, although it fixes the salary to be paid to “sweepers or drivers acting as assistants to the section or stable foreman,” is a mere detail, and not an appointment to a distinct position in the department.
    If the commissioner of street cleaning, in the exercise of his .discretion, determines that there are too many assistant section foremen, he may properly revoke the assignment of any assistant section foreman and relegate him to his duties as sweeper.
    ■ Appeal by the petitioner, Michael H. Leach, from an order of the ¡Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of July, 1902, denying the petitioner’s application for a peremptory writ of mandamus requiring the defendant to reinstate him in the position of assistant section foreman in the street cleaning department of the city of New York.
    
      William G. Reddy, for the appellant.
    
      Theodore Oormol/y, for the respondent.
   Ingraham, J.:

The relator was a member of the uniformed force in the department of street cleaning in the borough of Manhattan in the city of Hew York, and on August 15,1899, was examined by the municipal civil service board as an applicant for the position of assistant section foreman, was found duly qualified and placed upon the eligible list for appointment to said position, and subsequently, on January 20, 1900, he was notified by the chief clerk of the said department of street cleaning to report for assignment to duty as assistant foreman in said department. It also appears that he reported for duty and was assigned as an assistant foreman in the eighth section of the said department; at a compensation of $17.26 per week, and remained in the performance of the duties of this-position until January 5,1902,,-when notice was given to him that he was reduced to the grade of a' sweeper in the department at a salary of $720 a year. The relator seems to have refused to perform the duties of sweeper, and, having refused to perform any work after he had been reduced or to present himself for duty under this assignment,, he was, on January 21, 1902, discharged from the department for being absent for more than five days without authority from the commissioner, and this proceeding is brought to compel the commissioner to reinstate him in the position of assistant foreman.

The relator alleges that he is an honorably discharged soldier of the Union army during the war of the Rebellion, having enlisted in 1861 and having been discharged in 1863, and that for this reason the commissioner had no authority or power to discharge him without giving him an opportunity tp be heard. In reply to the application the commissioner alleged that, upon assuming the office of street cleaning commissioner on January 1, 1902, he found that in several of the sections into which the city had been divided ‘there were four and in some five: sweepers detailed as acting assistants to the section foreman; that the deponent ascertained that one or two-sweepers detailed as acting assistants to section foremen were -quite sufficient for each section, and, therefore, on January 4, 1902, lie ordered over eighty acting assistants to section foremen to be rele-' gated to their former duties as sweepers ; that the relator was one of the said number, he having, prior to January 4, 1902, been detailed as an acting assistant to the section foreman in the seventh section ; that in this section there were at that time twenty-seven sweepers, one section foreman and three acting assistants to the section foreman ; that the petitioner was informed on the 4th day of January, 1902, that he had thereafter to perform the duty of a regular sweeperthat he did not report for duty in that position, but absented himself from his section for more than five days, whereupon, on January twenty-first, he was dismissed from the department, having been absent from duty without leave for more than five consecutive days ; that subsequently, on February 15, 1902, notice was sent to the relator to appear at- the office of the department and present whatever grievance he had before the'department so that it could be rectified ; that that hearing was adjourned until Tuesday, March 4, 1902, but on that day the relator made no appearance before the commissioner; that on March 7, 1902, a further notice' was sent for him to appear on March 11, 1902, but that the relator-failed to appear on that day, and no appearance was made on his. behalf. The respondent also alleged that no notice had ever been given him that the relator was an honorably discharged soldier of the Civil War, nor did any record thereof appear in the department of street cleaning, and that there was no position in the department known as acting assistant to section foreman; that the same was a mere detail.

By section 536 of the amended charter (Laws of 1901, chap. 466) it is provided that the members of the department of street cleaning shall be divided into two general classes, to be designated, respectively, the clerical force and the uniformed force ; that “ the uniformed force shall be appointed by the commissioner of street cleaning and shall consist of one general superintendent * * *; section foremen not exceeding one hundred and twenty-five in number; * * * (and) sweepers not exceeding thirty-one hundred in number.” There is thus in the department no regular position of assistant to section foreman.” In fixing the compensation to-' be paid to employees in the department, the same section provides, that there shall be paid sweepers or drivers acting as assistants to. the section or stable foremen, nine hundred dollars each; ” but the distinction between the permanent positions and the details to special duties is here clearly pointed out. When a sweeper is acting as an assistant foreman he is to have higher pay than when acting as a. sweeper; but a detail to act as an assistant foreman was not an appointment to a distinct position in the department which prevented the commissioner from revoking the detail. ■

It seems to be clear the relator was duly appointed as sweeper, and such was his position in the department. He was detailed by the commissioner to act as an assistant to a section foreman, and while thus detailed he was entitled to be paid $900 a year, instead of $720 paid to sweepers; but this was clearly a detail in the department, and not an appointment to a new and distinct position.'

By a subsequent provision of the section “ the members of the department of street cleaning shall be employed at all such times. ' and during such hours and upon such duties as the commissioner of street cleaning shall direct for the purpose of an effective performance of the work devolving upon the said department.” And while a sweeper acting as an assistant to the section foreman would be entitled to an increased compensation while so acting, we think it quite clear from the provision of this section that it was not intended to create a separate grade or position in the department, but to leave it as a matter of detail to the commissioner^ the number of such assistants to be regulated from time to time as the necessity of the service required.

The same question in substance was presented in People ex rel. Buckley v. Roosevelt (5 App. Div. 169), in regard to the position of roundsman in the police department, and we held that a patrolman detailed to act as roundsman did not hold the position of roundsman by appointment within the meaning of the Veteran Act (Laws of 1888, chap. 119, § 1, as. amd. by Laws of 1892, chap. 577), which prevented the police commissioners from remanding a roundsman to patrol duty, although such detail to the position of roundsman was made after a competitive examination. The distinction between the appointment to a position in the department and a detail to á specific duty is clearly preserved by this section of the amended ■charter. The only position in the department to which the relator .was appointed, was that of sweeper. It was intended that the commissioner should have power to detail sweepers to act as assistants to section foremen, but as the number of such assistants depended upon the duties'imposed upon the section foremen from time to time, the necessity of the situation required that the commissioner ■should have power to revoke such a detail when the services of an assistant to the foreman were not required.

There is no claim here that this relator was removed to make a place for another person. On the contrary, the commissioner lias determined, in the exercise of Ins discretion, that the public service did not require that there should be three acting assistants to the section foreman when there were but twenty-seven sweepers attached to this section, and it is a little difficult to see how four foremen should be essential to a section when there were but twenty-seven sweepers. We think the commissioner had power to revoke this detail, and that when thus revoked the relator was relegated tó the position of sweeper to which he had been appointed, and was bound then to perform the duties of sweeper. The relator does not demand in this proceeding that he be restored to the position of sweeper, from which he was removed by the order of January twenty-first, nor does he deny the allegation of the commissioner that from the fourth to the twenty-first of January he absented himself from work as a sweeper and failed to perform the duties required of him. By section 537 of the amended charter it is provided that “ absence without leave of any member of the uniformed force for five consecutive days shall be deemed and held to be a resignation, and the member so absent shall at the expiration of said period cease to be a member of said force, and may be dismissed therefrom without notice.” Acting under this authority, the commissioner had power to dismiss the relator from.his position without notice.

It follows that the order appealed from must be affirmed, with costs.

Yan Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.

Order affirmed, with costs.  