
    In the Matter of the Application of Patrick W. Walsh, Respondent, for an Alternative Order of Mandamus against William B. Patterson, as City Manager of the City of Auburn, and Others, Appellants.
   Order reversed on the law, without costs of this appeal to either party, and petition dismissed, without costs, without prejudice to a renewal of the application, on the ground that the moving papers fail to show that the petitioner occupied a position in the civil service de jure under an appointment after proof of merit and fitness. (Matter of Meehan v. Flaherty, 119 App. Div. 128; People ex rel. Hannan v. Board of Health, 153 N. Y. 513.) All concur, except Crosby, J., who dissents and votes for affirmance in a memorandum as follows:

Crosby, J.

(dissenting). The authorities relied upon for reversal herein are those holding that the relator cannot have peremptory mandamus without showing in his papers a legal appointment to the position he seeks to retain. In the instant case the question is whether or not the petition, answer and affidavits raise a question of fact to be tried Such a question is here raised. It was stated by respondent on the argument and in his brief that no labor list is, or has been, kept by the Civil Service Commission for the city of Auburn. The city has not challenged that statement, and while it would have been better for the relator to make that allegation in his petition, his allegation that he was appointed by the city and held his position for four years, puts it beyond the power of the city to say that petitioner has no standing in court merely because he was not on the labor isfc, when the city does not show that such a list was kept. (Burke v. Holtzmann, 110 App. Div. 565.) In this application for alternative mandamus we do not have to be satisfied that relator has a clear legal right to his position. It is enough if issues of fact appear which, being resolved in relator’s favor, will give him that right. Even under the loose pleadings, all of which fail to state directly whether a labor list was or was not kept, I think the order of alternative mandamus should be affirmed.  