
    Matter of the Application of Edward D. Peters, for Mandamus, v. Robert B. Adam et al., Constituting Civil Service Commission of Buffalo.
    (Supreme Court, Erie Special Term,
    September, 1907.)
    Municipal corporations — Officers and agents — Officers', etc., other than mayor and common council — In general — Transfer from one position to another.
    Civil service — In general: Certificate of legality of employment; Officers subject to act— Chief clerk in the bureau of engineering in the city of Buffalo not subject to act.
    It is the intent and policy of the Civil Service Law (L. 1899, ch. 370) to permit transfers, especially when not amounting to promotion, from non-competitive to competitive positions, where the person so transferred passes the competitive examination and is placed upon the eligible list for the new place.
    Under rule 28 of the Buffalo civil service commission, which provides that transfers in the classified service can be made from one department to another, with the consent of the heads of the respective departments and of the civil service commission, and that no person shall be transferred from a position in tne exempt class to one in the competitive class unless he shall have passed the competitive examination prescribed for the competitive position, a person in office who attains any place on an eligible list has a prior right to transfer to those seeking original appointment, although the latter may stand higher on the list.
    Where, at the time petitioner was transferred, with the consent of the comptroller, from the position of chief bookkeeper in the comptroller’s office in the city of Buffalo, a position in the exempt class, to that of chief clerk in the bureau of engineering in the competitive class, the local civil service commission had prepared no eligible list, but, after a competitive examination, held I'ater, which petitioner took, an eligible list was prepared upon which he was fourth and which was officially certified to the commissioner of public works, contrary to the usual rule and custom to certify only the three highest names, and petitioner was continued in office upon the assumption that the civil service commission thus recognized and authorized his transfer, compliance with the fair intent and meaning and spirit of the Civil Service Law and of the rules of the local commission applicable to the transfer is shown, and petitioner is entitled to a mandamus to compel the commission to certify such of his pay-rolls as it has refused to certify. The position of chief clerk in the bureau of engineering in the city of Buffalo is a confidential one, and is improperly placed in the competitive class, and should be transferred to the exempt class.
   Proceeding to compel certification of pay-rolls.  