
    The People of the State of New York ex rel. John Conlin, Appellant, v. The Village of Dobbs Ferry and Others, Respondents.
    
      Civil service — an honorably discharged soldier of the Civil war is not entitled to a preference over a veteran volunteer fireman— the latter is a necessary party to a mandamus proceeding instituted by the former. • ■
    
    The Civil Service Law (Laws of 1899, chap. 870) does not compel the board of trustees of a village when filling a vacancy in the office of street commissioner . of the village, caused by the expiration of the prior incumbent’s term of office, to give an honorably discharged soldier of the Civil war a preference in appoint sment over a-veteran volunteer fireman, although the honorably discharged •soldier was the prior incumbent of the office.
    
      Bemble, that if the veteran volunteer fireman has been appointed he is a necessary party to a mandamus proceeding instituted by the honorably discharged soldier to compel the village board of trustees to appoint him to the position.
    Appeal by the relator, John Conlin, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 31st day of May, 1901, denying his' motion for a peremptory writ of mandamus.
    
      •Joseph F. Daly, for the appellant.
    
      Charles P. McClelland, for the respondents.
   "CrOODBIOH, P. J. :

It appears, though somewhat obscurely, that the relator held the , position of street commissioner of the village of Dobbs Ferry for the year ending March 25, 1901. In his petition he alleges that on that day he applied to-the respondents, composing the village board, “for its appointment of him as street commissioner for said defendant village, in whom the appointment to such office of street commissioner is vested by said village law.” The board refused to appoint him and appointed Michael J. Francis to the office, and he applied for a peremptory writ of mandamus requiring the village board of trustees to appoint him to such position.

He alleges that his application for appointment stated that he was-an honorably discharged soldier of the late Civil war, and that the board refused to give him the preference provided by the Constitution and by section 20 of the White Law (Laws of 1899, chap. 370), and appointed Francis, who was 'not an honorably discharged soldier, sailor or marine. The answer of Gilespie, president of the village board, alleges that Francis, in his application for appointment, set forth that he was a veteran volunteer fireman and entitled to preference in appointment.

The court denied the motion for the writ and the relator appeals.

Francis was not made a party to the proceeding, and this was held to be a fatal defect by the old General Term of this department in People ex rel. Ballou v. Wendell (10 N. Y. Supp. 587; S. C., 57 Hun, 362).

Section 43 of the Village Law (Laws. of 1897, chap. 414) provides that the term of office of the street commissioner shall be one official year. The relator’s term of office expired on March twenty-fifth. Consequently it cannot be held that the action of the board was a removal from office.. The board was called upon to newly fill an office, and between two persons entitled to preference in appointment, the one a veteran soldier and the other a veteran fireman, it selected the latter. The White Law does not compel the board in such a case to give the veteran soldier the preference, and the board had the power to exercise the right of selection. With that choice we cannot interfere.

The order should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  