
    The People of the State of New York ex rel. Henry B. Machen, Respondent, v. Nicholas J. Hayes, as Commissioner of Water Supply, Gas and Electricity of the City of New York, Appellant.
    
      Civil service — when municipal employee who resigned to enter military service entitled to reinstatement under section 22-b of Civil Service Law.
    
    
      People ex reí. Machen v. Hayes, 199 App. Div. 930, affirmed.
    (Argued March 1, 1922;
    decided March 21, 1922.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 25, 1921, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the reinstatement of the relator in the position of assistant engineer in the department of water supply, gas and electricity of the city of New York. The relator had been an assistant engineer in the department since July 1, 1911. On August 31, 1918, he left his position to enter the federal military service (in which he had been commissioned a major in the ordnance reserve corps about July 1, 1918), and he was honorably discharged September 30, 1920. The application was made pursuant to section 22-b of the Civil Service Law (Laws of 1919, chap. 225, passed and in effect April 15, 19.19), which, so far as material, read: “ Any person heretofore employed in the classified civil service of the state of New York or of a civil division or city thereof who has left his or her position or employment for the purpose of entering and has entered the federal military, naval or marine service * * * shall be entitled to be restored and shall be restored to such civil service position or employment.” Defendant contended that the position held by relator had been abolished.
    
      John P. O’Brien, Corporation. Counsel (John F. O’Brien, Willard S. Allen and Arthur Sweeny of counsel), for appellant.
    
      Cornelius W. Wickersham and Paul II. Arthur for respondent.
   Order affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Pound, Crane and Andrews, JJ. Dissenting: Hogan, Cardozo and McLaughlin, JJ.  