
    The People of the State of New York ex rel. Pauline Gumprecht, as Administratrix, etc., of Morris Gumprecht, Deceased, Appellant, v. Charles H. Knox and Others, as Commissioners, Constituting the Municipal Civil Service Commission of the City of New York, Respondents.
    
      Civil service — reinstatement of an employee who has resigned a position not originally requiring any civil service examination and who has failed to pass it—a mandamus requiring the applicant’s name to be certified upon the payroll, is not proper.
    
    Under rule 43 of the civil service rules of the city of New York, relating to the reinstatement of employees who resign, which provides, "If such employment was after due certification for the same, under these rules or under the Civil Service statutes in force at the'time the examinations were held, or if such person shall have passed the examination or attained a place upon the eligible list for such position, such person may be re-employed without further examination. If it was not subject to these rules or to such statutes, such person may be re-employed upon parsing an examination pursuant to these rules,” furnishes the only authority for reappointing employees who voluntarily resign.
    Where such an employee, who had never passed a civil service examination, and whose position, from which he had resigned, at the time of his original appointtinent thereto, was not subject to civil service rules or regulations, submits to tmd fails to pass a civil service examination for reinstatement in his position, for appointment to which an examination had been made necessary, and pending an appeal to the chief examiner the appointing power reinstates him in his position, “subject to the Civil Service Rules and Regulations,” and thereafter the chief examiner dismisses the appeal, the employee, notwithstanding the fact that after his reinstatement by the appointing power and before .the dismissal of his appeal, he entered upon the performance of his duties and continued to perform them for several months, does not come within the provision above quoted of rule 43, and is not entitled to a writ of mandamus compelling the civil service commissioners to certify his name upon the payroll
    Appeal by the relator, Pauline Gumprecht, as administratrix, etc., of Morris Gumprecht, deceased, from an order of the Supreme Gourt, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of August, 1901, denying the relator’s motion' for a peremptory writ of mandamus.
    
      Fred Henry Cox, for the appellant.
    
      William B. Crowell, for the respondents.
   Ingraham, J.:

It appears that the relator’s intestate was, in the year 1892, appointed a janitor of Grammar School 94 of the city of New York, and continued in such position until September 14, 1900, when he resigned, which resignation was on the seventeenth of September duly accepted by the board of education; that in December, .1900, he applied to be re-employed as a janitor-engineer, which application was referred to the municipal civil service commission ; that on the 18th of February, 1901, that commission informed the department of education and the relator’s intestate that a reinstatement would not be legal until the relator’s intestate had passed an examination for the position of janitdr-engineer, based upon rule 43 ef the civil service rules- and regulations. That rule provides that “ Any person employed in any position in the service of the city of New York who shall be certified to the Commission by the proper ¡authorities to have left such service without fault or delinquency on Iris part, and to have performed the duties of such employment creditably, may be re-appointed in the service of the city in the same position in the same department within one year next following his leaving the service. If such employment was after due certification for the same, under these rules, or under the Civil Service statutes in force at the time the examinations were held, or if such person shall .have passed the examination or attained a place upon the eligible list for such position, such person may be re-employed without further examination. If it was not subject to these rules or to such statutes, such person may be re-employed upon passing an examination pursuant to these rules.”

It does not appear that the relator’s intestate ever passed an examination for the position of janitor-engineer, and the position to which he was appointed was not at the time of his appointment subject to civil service rules or regulations. This rule having been brought to the attention of the relator’s intestate and to the department of education on February 4, 1901, the relator’s intestate appeared before the civil service commission and submitted to an examination for reinstatement, which examination he failed to pass, receiving sixty-four and sixty one-hundredths per cent on his mental examination, the minimum percentage necessary to qualify being seventy per cent. He was also physically examined, as prescribed by the rules and regulations and was rejected. Subsequently he appealed to the chief examiner, who dismissed the appeal and affirmed the action of the .examiners. Subsequent to this examination, but before the decision on his appeal, and on February 25, 1901, the department of education reinstated the relator’s intestate in his position, “ subject to the Civil Service Rules and Regulations,” but as said rules and regulations provided that the relator’s intestate could not be appointed except upon passing an examination pursuant to the rules, that appointment could not' become effective until he had passed such an examination. Notwithstanding the fact that he had failed to pass the examination, he entered upon the performance of the duties of the position, and continued in the performance of such duties from the 25th of February, 1900, to the 20th of June, 1901. Upon his name appearing upon the payroll, the civil service commissioners refused to certify it, whereupon he made this application for a mandamus compelling them to make such certification. Subsequent to the commencement of this proceeding it seems that he died and his administratrix was substituted as the relator. Upon these facts the court below.ref used a mandamus.

The question depends upon the construction of rule 43 of the civil service rules of the city of New York. That rule provides for the re-employment of persons employed in any position of the "service of the city who have left such service without fault or delinquency on their part, and performed the duties of such employment creditably. “ If such employment (viz., the employment in any position of the service of the city of New York of any person who has-left the service and who- applies for -reinstatement) was after due certification for the same, under these rules (that is, rules established by the civil service commissioners) or under the Civil- Service statutes in -force at the time the examinations were held, or if such person shall have passed the examination or attained a place upon the eligible list- for such position," such person - may be re-employ'ed without further examination.” It is clear that the decedent does not come within this provision. He never passed an examination for- the position [of- janitor-engineer, and at the time he was appointed to that position it was not subject to any civil service rules or regula, tions. - The rule then provides, If it (the employment of the person making the application for reinstatement) was not subject to these rules or to such statutes, such person may be re-employed upon passing an examination pursuant to these rules.” This was clearly the case of the relator’s intestate. He had passed no examination for the position,, nor was the position to whicli he was originally appointed at the time of his appointment subject to any civil service rules or regulations. Under the rule, therefore, which was the only authority the appointing power had for reinstating the relator’s intestate in the position from which he had voluntarily resigned, he could not be legally reappointed until he had passed an examination under the civil service rules; and before any action of the appointing power in regard to the reinstatement of the relator’s intestate was had, he .was informed of this rule and that such an examination was necessary. In compliance with this provision he submitted to an examination which he failed to pass, and it was after he had thus submitted to an examination and had notice that he failed to pass that the appointing power acted and he received the qualified appointment. That appointment was not absolute, but was subject to the civil service rules and regulations. The reinstatement, therefore, was conditioned upon his complying with the rules, and certainly was not at all effectual for,any purpose until he had succeeded in passing the examination which would justify the reinstatement.

Counsel, for the relator’s intestate seems to insist that rule 43 was beyond the power of the civil service commissioners, and, therefore, invalid. But, so far as appears, rule 43 is the only authority which justified the relator’s intestate’s reappointment, and if that rule is invalid the appointment is void. The provisions of the Civil Service Law in force at the time this appointment was made do not expressly authorize an appointing officer to reinstate an employee who had resigned. Section 13 of the act (Laws of 1899, chap. 370) prohibits all appointments in the competitive list not filled by promotion, reinstatement, etc., except from those graded highest in the competitive examination. It excludes those persons reinstated from'the absolute necessity of a competitive examination, leaving it to the rules to determine when such reinstatement should be allowed; and that is done under rule 43 to which attention has been called. If the reinstatement of this petitioner was made under the act of 1899, and the civil service rules adopted thereunder, it was necessary for him to pass an examination for the position to entitle him to be reinstated. It seems to be quite clear, therefore, that the relator’s intestate was not legally appointed and the court below correctly denied the application.

The order appealed from should be affirmed, with costs.

Patterson, Hatch and Laughlin, JJ., concurred.

Order affirmed, with costs.  