
    The People ex rel. Theodore A. Drake, Resp’t, v. John R. Sutton et al., as Board of Audit, etc., App’lts. The People ex rel. Daniel O’Reilly, Resp’t, v. Same, App’lts. The People ex rel. Frederick A. Davis, Resp’t, v. Same App’lts. The People ex rel. William A. Brown, Resp’t, v. Same, Appl’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 14, 1895.)
    
    ' 1. Orvrt, Service law — Mandamus.
    In proceedings to compel the reinstatement of a clerk under the civil service law, apposing affidavits, which merely'State that the affiant was 'informed that the rector wa,s upt within the .privppge o.f the statute, are insufficient.
    2. Same — Exception.
    Ip order to fafi withip the exception of the, statute, the relations between the clerk and the appointing officer'must be of a personal nature.
    3. Same.
    
      Mandamus lies to compel the reinstatement of a clerk who was wrongfully removed".
    Appeal from final orders, directing that peremptory writs issue.
    
      Thos. F. Magner, for app’lts; Chas. J. Patterson, for resp’ts.
   Brown, P. J.

—The relators are gR veteran volunteer firemen of the city .of Brooklyn, and prior to January 31, 1895, were clerks in thq bp^rd of audit of that, city, and on that, -flay were discharged.

By chapter 577, Laws 1892, veteran volunteer-firemen* holding positions by appointment in any city of this state* ¡and ¡receiving asglary from such city., cannot be removed from their positions except for cause after .a hearing had, unless they hold their positions for a.definite term, or filled the. position of private secretary, chief clerk, or deputy to the official or -department, or held confidential relations to the. appointing officer. The appellants claimed that the. relator Brown was a chief clerk to the board of audit, and therefore not with in the protection of the act in question. This claim is not-sustgined by the papers before ns. The affidavit of the comptroller is that the said relator was secretary to the board of audit. We are not referred to any. provision of the charter creating such an office. The resolution of the board under which the relator was discharged, and the. notice delivered to him of Ms discharge, designated Mm as an “account clerk;" and there are no facts set forth in relation to his duties showing him to have-been other than a clerk. If he acted as secretary of the board of audit that fapt did not make him a chief clerk .or deputy in the .department. In Davis’ case there was an affidavit by th,e comptroller that he had beep .informed that the .relator was .np.t, .a veteran fireman. ISTo issue of fact was raised by this affidavit. The relator’s-certificate of discharge was set forth in the moving affidavits and there was no denial of its validity. In all other respect the several cases are alike, and may be considered together.

We are of the opinion that the relators bore no confidential relations to the board of audit or any member thereof. There services were wholly of a public character, -and they bore no personal relations to any member of the board. In order to fall within the exception of the statute, the relations between the clerk and the appointing officer must be of a personal nature. The performance-of official duties are not confidential to the head of the department. In these cases the duties performed by the relators are enumerated in the petitions, and not denied in the answering affidavits, and the question whether they were, in charter, official or confidential was one for the court to determine.

We are also of the opinion that -the relators were clerks, and not incumbents in a public office, and that mandamus was the proper proceeding to restore them to their positions. The rule that courts will not, at the instance of a person out of -possession of an office, try the .title thereto by mandamus, but will leave the party to his remedy by writ of quo warranta, has reference to public officers created by law, and is not applicable to clerks or employes unlawfully removed from their positions by superior authority. The case of People ex rel. Wren v. Goelting, 133 N. Y. 569; 44 St. Rep. 503, cited by the appellant, involved the title fio the office of clerk of a police court, an office which was created and existed by force of a statute of this state, and such are all the cases to which my attention has been directed, and in which the rule was applied.' But it is very plain that quo warranta would not lie to try the right to a clerkship in the public service. Such-positions dp not exist solely by forpe of law, hqt by the will and discretion of the appointing officer.

Title 3, section 2, of-the charter of the city of Brooklyn confers upon the heads of the departments power to appoint and remove clerks and their assistants and other subordinates, and to fix their salaries. While the incumbents of such positions perform duties of a public character, they do not hold a public office as that term is used in the case referred to. It follows from these views that the relatoras cases fell within the provisions of chapter 577, Laws 1892, and as they were not appointed for a definite time, their discharge without a hearing and for np-assigned caused was illegal. They have a clear legal right to be restored to their position.

Mandamus is the only remedy adequate to remedy the wrong done them, and the order must be affirmed, with costs.  