
    In the Matter of the Application of John W. Agar for a Peremptory Writ of Mandamus to Issue to John Boyd Thacher, as Mayor of the City of Albany, and James Rooney, as Chamberlain of the City of Albany.
    (Supreme Court, Catskill Special Term,
    July, 1897.)
    Albany — Bight of bridge tender appointed by the state to recover of the city, although he has never passed a civil service examination — Mandamus improper.
    A bridge tender of the Lawrence street bridge in the city of Albany, erected under Laws of 1879, chapter 88, providing that the bridge should be operated at the expense of the city, but subject to the control of the state superintendent of public works, appointed by the superintendent before the position of bridge tender had been classified by the state civil service commission, has a valid claim against the city for his services, although he has never passed a civil service examination; but, as the appointee is not a city officer- or laborer, his' demand is not, in the first instance, enforcible by mandamus, but must, within section 46 of title 3 of the city charter, be presented to the clerk of the common council for allowance by the common council.
    Motion for a peremptory writ of mandamus, to issue to John Boyd Thacher, as mayor of the city of Albany, and James Rooney, as chamberlain of the city of Albany, commanding the said John Boyd Thacher, as mayor, to audit, and the said James Rooney, as chamberlain, to pay the claim of the petitioner for services as a bridge tender at the Lawrence street bridge in the city of Albany, ET. T.
    The Lawrence street bridge, over Erie canal, in the city of Albany, was constructed pursuant to chapter 88 of the Laws of 1879, which provided for the erection of the bridge, and that the same should be operated subject to the control of the state superintendent of public works and at the expense of the city of Albany.
    In April, 1897, the state superintendent appointed the petitioner as a bridge tender at the Lawrence street bridge in the city of Albany for the season of 1897, at a salary of $2.25 per day. He served during April and May, and then presented a voucher in the same manner as the vouchers had been prepared and presented since the erection of the bridge, to the mayor for audit, and the mayor refused to audit the same, on the ground that the petitioner had not passed a civil service examination, and that the city had the right to- fix the compensation for such services.. - - -
    Scherer & Downs, for motion.
    John A. Delehanty, opposed.
   Chase, J.

I am satisfied that the relatór has a valid claim against the city of Albany for the amount of his bills. He was an employee of the state, and in no sense in the civil service of the city of Albany, and the superintendent, of public works was not required to appoint bridge tenders at these canal bridges in the city of Albany, from the eligible list prepared by the board of civil service examiners of such city.

At the 'time of the appointment of the relator the position of bridge tender had not been classified by the state civil service commission, and relator does not come within the decision in People ex rel. McClelland v. Roberts, 148 N. Y. 360.

The petitioner alleges that relator was duly appointed by the superintendent of public works, and it will be presumed in-making the appointment the superintendent took into account the provisions of the state Constitution.

The superintendent of public works had the right to fix the relator’s compensation. Gilligan v. Town of Waterford, 91 Hun, 21; Failing v. City of Syracuse, 4 Misc. Rep. 50.

FTotwithstanding the' fact that the relator has a valid claim ' against the city of Albany, he is not, in my judgment, entitled to the .writ demanded. Chapter 88, Laws of 1879., does not provide' how the city of Albany shall pay the expense assumed. The relator is not an officer of the city, or a city laborer, and does not come within the provisions of section 50, title 3 of the city charter.,

The bridge was constructed by the state on the express or implied contract of the city of Albany to pay 'the entire expense. Although the superintendent of public works had the authority to fix the compensation of relator, yet, in the absence of an express provision of law, as stated in section 10, title 6 of the city charter, ■ the claim comes within the language of section 46 of title 3 of the charter, which requires a demand against the city arising upon contract, express or implied, to be presented to the clerk of the common council, in the form prescribed by that section.

I do not think the custom in regard to these payments would justify the mandamus asked for by the relator. The claims should be presented to the clerk of the common council, and in case they aré not allowed or are allowed at less than $2.25 per day, an action may be brought against the city of Albany,' or, perhaps (this I do not decide), mandamus would lie to compel the audit and payment of the claim.

The motion is denied, with $10 costs.

Motion denied, with $10 costs.  