
    The People of the State of New York ex rel. Leslie G. Halleran, Relator, v. James Creelman, Alexander Keoch and Richard Welling, as Municipal Civil Service Commissioners, Respondents.
    (Supreme Court, New York, Special Term,
    September, 1911.)
    Civil service: Preference of veterans and firemen — Promotions: Civil and criminal proceedings — Remedies—Mandamus — Parties.
    Mandamus — Procedure and relief (Code Civ. Pro., §§ 2627-2825) —■ Parties.
    Where one is appointed by municipal authority to the position of assistant engineer, although by subsequent classification the municipal engineer service is classified into several grades and a salary equal to that paid such appointee is affixed to lower grades of such engineer service than assistant engineer-, he still remains an assistant engineer, and advancement of his salary to that of assistant engineer under the new classification is not a promotion.
    Where the municipal civil service commission refuse to certify the pay-roll providing for the payment of the advanced salary to such employee, and he applies for a mandamus to compel such certification, no claim being made that the existing rules of the local civil service commission are not proper and binding upon those affected, by them, and the records of said commission disclose facts sh'owing the validity of relator’s right to his position of assistant engineer, his motion to compel certification of his pay-roll is not a collateral attack on the civil service rules; and, therefore, neither the mayor nor the State Civil Service Commission is a necessary party to the motion.
    Mandamus to compel a municipal civil service- commission to certify relator’s pay-roll.
    
      Kellogg & Pose, for relator.
    Archibald E. Watson, Corporation Counsel, for respondents.
   Delany, J.

The relator having qualified by examination and having been placed on the civil service eligible list was duly appointed in October, 1906, an assistant engineer, at. a salary of $1,350 per year, by the board of water supply of the city of New York. In September, 1909, his salary was increased to $2,000 a year, and he has continued in his employment as assistant engineer since his appointment. On November 10, 1909, the municipal civil service commission amended its rules and placed the position of assistant engineer under a classification denominated “The Engineer Service, Class I Civil,” and subdivided this classification into six grades — Grade 1, Axeman; 2, Eodman; 3, Transitaran and Computer; 4, Assistant Engineer, and so on. In these several grades were evidently included men doing the distinctive, kinds of work which the respective titles of their positions indicated, the three lower grades seemingly being engaged in occupations incidental to the earlier experience and training of an engineer. These grades were also distinguishable from each other by. the amount of salary allowed in each. When this scheme went into effect the relator was receiving $2,000 a year, but in February, 1911, the board of water supply increased his salary -to $2,400' a year. The municipal civil service commission refused to certify his pay-roll at this salary on the ground that it was a promotion from one grade to another and that the relator had not passed the required examination and been certified under the rules. The amended rules, whez'e the grades were based in part on the salary received, prescribe such examination, and the board claims that in effect the relator belonged to the grade to which his salary was appropriate. This position does not seem defensible. It is clearly not in accordance with the law .as laid down in People ex rel. Lodholz v. Knox, 58 App. Div. 541. The relator did not belong to grade 3, which comprehends no- positions higher than leveller and transit-man. He was an assistant engineer, no matter whether his salary was lower or higher than that given employees in grade 3. It is contended that his increase of salary' is a promotion and that there are other candidates who have passed the examination entitling them to advance to the 4th grade; that the 'action of the board of water supply is prejudicial to them, and that the relator’s right is contestable. But these candidates for promotion are not -assistant engineers, although eligible to be appointed such, whereas the relator is already an -assistant engineer. He is, therefore, not a competitor with them. Hone of them blocks his way.” Hor can I accept the suggestion -that this motion is a collateral attack on the civil service rules, and, therefore, requires that the mayor and the State Civil Service Commission be made parties. It is not claimed that the existing rules are not proper and binding on those affected by them, but it is urged that the relator’s right is not affected by them so as -to reduce him to the post of leveller and transitman and require him to pass another examination for.the same position which he now lawfully occupies: The records of the municipal civil service commission disclose to the commission the facts showing the validity of his right to his position -as assistant engineer. The constitutionality of their rules is not attacked here, as in People ex rel. Huber v. Adam, 116 App. Div. 613, nor is this motion directed to securing a reclassification or a non-competitive class, a-s in the other cases cited, for this could not be done without the action of these officers. It is not their duty to certify pay-rolls in the city of Hew York; but it is the duty, in a proper case, for the municipal civil service board to do so. It is to compel the performance of this duty that this application is made.

Application granted.  