
    The People of the State of New York er rel. George S. Skilton, Relator, v. Merritt H. Smith, Chief Engineer of the Department of Water Supply, Gas and Electricity of the City of New York, and William Williams, Commissioner of the Department of Water Supply, Gas and Electricity of the City of New York, Respondents.
    (Supreme Court, Kings Special Term,
    June, 1915.)
    Civil service — dismissal of veteran volunteer fireman not violation of section 14 of Civil Service Law — when alternative writ of mandamus granted.
    Relator, a veteran volunteer fireman holding a position in the competitive class in the department of water supply, etc., of the city of New York, was dismissed or suspended in consequence tif the reduction of the number of employees in that department. Held, that as relator’s duties were not necessarily appurtenant to his position or to any position in the competitive class, the transfer of some of such duties to an employee holding a position in the exempt class was not a violation of section 14 of the Civil Service Law which provides that “no person shall be transferred to, or assigned to perform the duties of, any position subject to competitive examination; unless he shall have previously passed an open competitive examination equivalent to that required for such position, or unless he shall have served with fidelity for at least three years in a similar position,” nor did the facts justify the inference as matter of law that relator’s dismissal or suspension was in bad faith, and no case was made out for the granting of a peremptory writ of mandamus to compel his reinstatement.
    Where, however, upon the petition and the opposing papers an issue is raised as to whether relator’s dismissal or suspension was in good faith in a legal sense, an alternative writ of mandamus may be granted to try out such question, and also, if relator desires, the question whether or not his duties were transferred to an employee in the exempt class.
    Application for an alternative writ of mandamus.
    Ferguson & Ferguson (Leslie C. Ferguson, of counsel), for the relator.
    Frank L. Polk, corporation counsel (Elliot S. Benedict, assistant corporation counsel, of pounsel), for respondents.
   Benedict, J.

The relator, a veteran volunteer fireman, seeks reinstatement to the position of assistant engineer in the department of water supply, gas and electricity. He is one of a number of employees dismissed or suspended from service on December 31, 1914, in consequence of a reduction of the force of employees in that department.

Relator’s principal grievance, urged in Ms brief, seems to be that some of the duties performed by him were, in the redistribution of his work, necessitated by the abolishment of his position, assigned to Elmer G. Manahan, a division engineer, in charge of the division of investigation and design, an exempt position, while the position held by relator was in the competitive class. He claims that tMs was in violation of the provision of section 14 of the Civil Service Law, that “ no person shall be transferred to, or assigned to perform the duties of, any position subject to competitive examination, unless he shall have previously passed an open competitive examination equivalent to that required for such position, or unless he shall have served with fidelity for at least three years in a similar position.” Relator’s duties weré not necessarily appurtenant, so to speak, to his position, or to any position in the competitive class. He was one of a number pf engineers in the department, among whom the work was distributed by the commissioner and the chief engineer. For several years prior to his dismissal relator was in charge of the real estate bureau, the work of which seems not to have been particularly appropriate to the title of engineer. Work of this bureau, it is alleged in the opposing papers, had so far progressed at the end of 1914 that the volume of work was materially reduced.

Accordingly relator’s position was abolished, and some of his duties transferred to Mr. Manaban, and others to another person. All this does not, as it seems to me, show any violation of the provisions of section 14 above quoted. See People ex rel. Daly v. Jones, N. Y. L. J., Aug. 19, 1910; affd., 144 App. Div. 929. Nor does it justify the inference, as matter of law, that relator’s dismissal- or suspension was in bad faith. Hence no case for a peremptory writ is made ont.

I think, however, that an alternative writ should be granted, not only on the allegations of fact above referred to, but also on the further allegation of the petition to the effect that bn or about January 1, 1915, the commissioner appointed Manahan as division engineer, without his having taken any civil service examination, and - transferred to him the duties previously performed by relator. The opposing affidavits allege that Mr. Manaban at that time occupied, and for some time prior thereto had occupied, the same position he now holds of division engineer, and that in the redistribution of the duties formerly performed by relator some of them were assigned to Mr. Manahan.

A distinct issue is thus raised upon a material question of fact; and, in consideration of all the allegations of the petition and the opposing papers, I think that an alternative writ should issue-to try out the question whether relator’s suspension or dismissal was in good faith in a legal sense — I do not see any reason to question the actual good faith of the commissioner — and also, if relator desires, the question whether or not all of his duties were transferred to an employee in the exempt class.

In what has been said above I have assumed that Mr. Manaban was not a veteran, but there is no allegation in the petition to that effect, and the petition should be amended in this respect before the alternative writ issues.

Motion for alternative writ granted.

Motion granted.  