
    Matter of the Application of Henry P. Morrison for a Peremptory Writ of Mandamus against Jacob A. Cantor et al., Respondents.
    (Supreme Court, New York Special Term,
    June, 1902.)
    New York city — Civil Service — Bight of a veteran, volunteer fireman, upon abolition of his position, to be transferred to another position newly created with similar duties.
    A veteran volunteer fireman, who has risen by competitive examinations to the position of chief engineer of highways and sewers of the borough of Richmond in the city of New York, who remained such until abolition of that position on or about February 1, 1902) and. who was at once placed by the city civil service commissioners at the head of the list of persons eligible to appointment to the position of chief engineer in the county of New York, is, upon the creation on or about the same day of the position of chief engineer in the bureau of highways in the office of the commissioner of public works of the borough of Manhattan, with the same salary and similar duties, entitled in view of the statutes (L. 1897, chap. 378, §§ 127, 1543; 1902, chap. 270, § 21) to a peremptory writ of mandamus requiring said civil service commissioners to certify his name to the borough president for appointment to said position and to certify it upon the payroll as of February 1, 1902, where the said president has attempted to appoint to the position a person not a veteran soldier, sailor or fireman, and one who was not certified by said commissioners for appointment to that position or any other.
    Application for a peremptory or alternative writ of mandamus.
    Roger Foster, for petitioner.
    George L. Rives, Corporation Counsel, for respondents.
   Giegerich, J.

From the statements in the petition, which are

undisputed, it appears that the petitioner is, and was at the time of the removal complained of, a veteran volunteer fireman. He is a graduate of the University of the City of New York in the civil engineering department, having received his degree in 1880. Since the 16th day of March, 1881, he has been continuously in the municipal service in the line of his profession, having risen through various grades, and, by successive competitive examinations, from the position of axeman at $2.50 a day, to the position of chief engineer of highways and of sewers, and deputy commissioner of water supply of the borough of Richmond, at an aggregate salary of $5,000. On or about the 1st day of February, 1902, the position of chief engineer for the borough of Richmond was abolished, and, in pursuance of the civil service provisions, the name of the relator was at once thereafter placed by the municipal civil service commission of the city of New York at the head of the list containing the names of persons eligible to appointment to the position of chief engineer in the county of Mew York. On or about the 1st day of February, 1902, the president of the borough of Manhattan created the position of chief engineer in the bureau of highways in, the office of the commissioner of public works of the borough of Manhattan, at a salary of $5,000 a year, the duties of such position being substantially the same as the relator was performing in the borough of Richmond. The position thus created, the president of the borough of Manhattan attempted to fill by the appointment of one neither a veteran soldier, sailor nor fireman, nor upon the said eligible list, and who was not certified by the municipal civil service commission for appointment to such position, or to any position. The appointee thus attempted to be made has received no compensation for his services, and the municipal civil service commission has refused to certify his name upon the payroll. The petition prays for a writ of peremptory mandamus requiring said commissioners to certify the petitioner’s name to the said president for appointment to said position, and to certify his name upon the pay-roll nunc pro tunc as of February 1, 1902. The opposing affidavits do not put in issue any of the material allegations of the petition. It is true that the affidavit of the borough president “ denies the allegations contained in paragraph 13 of the moving papers herein, in which the relator claims that the duties of his office as chief engineer in the borough of Richmond are similar to the duties of chief engineer in the borough of Manhattan.” This is only a denial of the allegations in which the relator claims similarity in the duties, but is not a denial of the allegations of fact, consisting of a long recital in detail of the character of those duties in the respective boroughs, from which it appears that the requirements in the two positions are in fact substantially the same. .The opposing affidavits also state that the position in question is one in its nature of a confidential character, and which the civil service commissioners, through an inadvertence, neglected to place in schedule A, part I, being the exempt, noncompetitive or confidential class of employees. It being undisputed, however, that, as the classification now exists, the position in question stands in the competitive list, the court cannot well consider evidence as to what the unperformed intention of the commission might have been. The decision must be made on the facts as they exist. I am of the opinion, therefore, that,,under section 21 of chapter 270 of the Laws of 1902, and under sections 127 and 1543 of the new charter, the petitioner is entitled to a peremptory writ as prayed for.

Writ granted.  